Citation Nr: 1724809 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 09-18 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than October 14, 2007 for the award of a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted entitlement to TDIU effective October 14, 2007. In June 2010, the Veteran testified before a Veterans Law Judge (VLJ) at a hearing at the Board's Central Office in Washington D.C. He testified at a second hearing before a different VLJ at a videoconference hearing in March 2012. Transcripts of both hearings are of record. The VLJs who presided over the Veteran's June 2010 and March 2012 hearings are no longer employed by the Board. The Veteran was notified of this fact in August 2011 and May 2012 letters and provided the opportunity to request new hearings in accordance with 38 C.F.R. § 20.707 and 20.717. He responded in August 2011 with a new hearing request, and the March 2012 videoconference hearing was provided. In May 2017, after he received notification the second VLJ was no longer employed at the Board, the Veteran responded that he did not want a third hearing. The Board notes that the Veteran had repeatedly asked for a third hearing in correspondence received by VA in January 2017, February 2017, and March 2017. However, his May 2017 notification response clearly indicates that he did not want to appear at a third hearing and the Board will therefore consider the previous hearing request as withdrawn. 38 C.F.R. § 20.702(e) (2016). In March 2011, September 2011, September 2012, and July 2014 the Board remanded the case for further action by the originating agency. The case has now returned to the Board for additional appellate action. When the case was previously before the Board, the issues on appeal included entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD). In August 2016, the RO granted a total schedular rating (100 percent) for the Veteran's service-connected PTSD effective June 11, 2008. This represents a complete grant of the benefits sought on appeal and the issue of higher rating for PTSD is no longer before the Board. However, the Veteran filed a notice of disagreement (NOD) in September 2016 initiating an appeal with the assignment of a June 11, 2008 effective date for the 100 percent evaluation. A statement of the case (SOC) has not yet been issued on this claim, but the record indicates that the NOD has been recognized by VA and the appeal is being processed. Additionally, the Veteran filed new claims in May 2017, to include entitlement to service connection for additional psychiatric disorders. These claims have not yet been adjudicated by the agency of original jurisdiction (AOJ), but again, the record establishes that they have been recognized by the AOJ and are being developed. The Board will therefore refer the new claims, along with the appeal for an earlier effective date for the award of a 100 percent rating for PTSD, to the AOJ for the appropriate action, to include adjudication and the issuance of a SOC. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. The Veteran filed an informal claim for TDIU in March 2007; this claim was implicitly denied by the September 2007 rating decision awarding service connection for PTSD and assigning an initial 70 percent evaluation effective June 22, 2001. 2. The Veteran's formal claim for TDIU was received on January 7, 2008. 3. It is factually ascertainable that the Veteran became unemployable more than one year prior to the date his claim was received. CONCLUSION OF LAW The criteria for an effective date earlier than October 14, 2007 for the award of TDIU are not met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). This includes complying with the Board's remand directives in further developing this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions). In response to the Board's remands, the Veteran was provided a videoconference hearing in March 2012 and updated records of VA treatment were obtained and added to the claims file. Additional development was also taken regarding the claim for an increased rating for PTSD, but this claim is no longer before the Board. The claim was then readjudicated in an August 2016 Supplemental Statement of the Case (SSOC). To the extent the claims file contains additional evidence and argument received after the August 2016 SSOC, the Board interprets a June 2017 statement from the Veteran as including a waiver of initial RO consideration of this evidence. In the June 2017 correspondence, the Veteran requested that the VA obtain records of treatment from several VA and private facilities and review of the claims file shows are already part of the record. The Veteran also asked that the Board "research this information without remand to the Regional Office because of the time it take[s] ." The Board finds that the Board has therefore waived the initial RO adjudication of this evidence. See 38 C.F.R. § 20.1304(c). Entitlement to TDIU was granted in the June 2008 rating decision on appeal effective October 14, 2007, the date the RO determined the Veteran was unemployable. The Veteran contends that an earlier effective date is warranted as he has been unemployable due to his service-connected psychiatric disorder since his discharge from active duty in 1975. Additionally, the Veteran contends that he was not aware he could file for VA benefits until 2001 and would have filed an earlier claim if he knew he was eligible for compensation. TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow substantially gainful occupation as a result of service- connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The grant of TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Court of Appeals for Veterans Claims (Court) and VA 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 claim. If the increase occurred after the date of 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). The Board must first determine when the Veteran's claim was received. A formal claim for TDIU was received by VA in January 2008, when a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) was submitted. However, the Board finds that an earlier claim was submitted in March 2007, when VA received statements from the Veteran's sisters stating that he was not able to hold a job due to psychiatric symptoms. These statements were added to the claims file in support of the Veteran's pending claim for entitlement to service connection for an acquired psychiatric disorder. The Federal Circuit has held that 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 (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). Hence, evidence of unemployability submitted during the course of a claim for service connection could can an informal claim for TDIU. See also Norris v. West, 12 Vet.App. 413, 417 (1999) (stating that the Board must "review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims"). As the March 2007 statements contain evidence of a psychiatric disorder, were submitted in support of a claim for the highest rating possible, and contain evidence of unemployability, the Board finds that they raise a claim for entitlement to TDIU under Roberson. Although the Veteran filed a claim for TDIU prior to January 2008, the Board finds that it was not pending at the time of the June 2008 rating decision awarding the benefit. The RO granted service connection for PTSD and assigned an initial 70 percent evaluation in a September 2007 rating decision. The RO did not specifically address the pending claim for TDIU in its September 2007 rating decision, but the decision clearly awarded less than a 100 percent disability rating for the Veteran's PTSD, his only service-connected disability. The Board finds that the September 2007 rating decision is therefore deemed to have denied the pending claim for entitlement to TDIU in accordance with the Federal Circuit's decision in Deshotel v. Nicholson, 457 F. 3d 1258 (Fed. Cir. 2006) (if the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO'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 Court's decision in Ingram v. Nicholson, 21 Vet. App. 232, 248 (2007) (where the RO assigns less than 100 percent for the service-connected disability upon which a TDIU claim is predicated, a claimant is understood to have "received general notice of the denial of [his] TDIU claim[]."). The Board is cognizant of the Court's holding in Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), but finds that this decision does not alter the outcome in this case. In Locklear, the Court held that while the assignment of a disability rating less than 100 percent generally serves as a final decision with regard to a claim for TDIU, the implicit denial rule is not for application when the Secretary explicitly separates the adjudication of one disability rating or benefit from another. Locklear at 316. In that case, the Court found that the VA had separated a claim for TDIU from an underlying claim for an increased rating by specifically referring the claim for TDIU for adjudication in a previous Board decision. Id at 317. In this case, the claim for TDIU was never explicitly separated from the pending claim for service connection for PTSD. VA did not separately refer, develop, or adjudicate the claim for TDIU until after receipt of the formal claim for the benefit in January 2008. Thus, the implicit denial rule applies to the current case and the Veteran's March 2007 informal claim for TDIU is deemed denied by the September 2007 rating decision assigning less than a total disability evaluation for PTSD. Similarly, any other earlier informal claim for TDIU would have been addressed by the September 2007 rating decision in accordance with Deshotel and Ingram. Thus, the Veteran's claim for entitlement for TDIU was received in January 2008. The Board must now determine when it is factually ascertainable that the Veteran became unemployable. In numerous statements to VA and in testimony dated in June 2010 and March 2012, the Veteran reported that he has been unemployable since his discharge from active duty service in 1975. He relates a long history of employment in the automotive sales industry, but also states that his employment was inconsistent, variable, and subject to the mood swings that are a manifestation of his service-connected PTSD. The claims file contains lay and medical evidence to this effect; statements from the Veteran's coworker and former supervisor dated in February 2008 and June 2010 describe the Veteran as "one of the most talented sales professionals...in the business," but also note that his erratic behavior and mood swings made it impossible for him to retain employment for any length of time. The Veteran has consistently reported holding approximately 200 jobs since his discharge in 1975 and VA and private medical records dating from February 1992 document multiple psychiatric admissions for polysubstance abuse, suicidal ideation, and other psychiatric symptoms. Beginning in 2001, the Veteran spent a significant amount of time in various VA hospitals and domiciliaries and his work history was accordingly fractured. Other evidence also indicates the Veteran was unemployable prior to October 2007, the date the RO determined the Veteran was not able to work, including earning statements issued by the Social Security Administration (SSA). These statements show that the Veteran's income from 1975 to 2008 was quite variable, but was typically less than $10,000 per year. The years when the Veteran earned more money, the late 1980s and mid-1990s, also correspond with the Veteran's reports of a time period when he abstained from drugs and alcohol. In any event, it is clear that beginning in 2001, when the Veteran began regular in-patient treatment at various VA facilities, his income was significantly reduced and he did not earn over $10,000 in any given year. In fact, in 2002 and 2005, the Veteran earned only $506 and $387, respectively. The Veteran was also specifically characterized as "not currently employable" by a VA physician in a January 2007 discharge summary from the Bath VA Medical Center (VAMC). The Veteran's clinical records and statements to VA document his reports of intermittent employment with various companies since 2001, but this employment was, for the most part, marginal in nature. Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a) (marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis). Not all of the Veteran's employment was marginal; one of the Veteran's formal employers reported in January 2008 that the Veteran was employed from February 26, 2007 to October 13, 2007 and earned approximately $55,000. This represents one of the longest periods of sustained employment documented by the record and the Veteran's highest earnings. It also formed the basis for the RO's finding that the Veteran became unemployable on October 14, 2007. However, this period of employment is inconsistent with the Veteran's typical earnings and the record clearly establishes that the Veteran was unable to sustain any period of employment for longer than a year. The Board therefore finds that it is factually ascertainably that the Veteran was unemployable from at least November 15, 2000, when he began regular private and VA in-patient treatment for substance abuse and other psychiatric symptoms. This date is more than a year prior to the date his claim was received in January 2008. The regulations pertaining to effective dates provide that if the service-connected disability increased in severity more than one year prior to the date of claim, the effective date is the same as the date the claim was received. 38 C.F.R. § 3.400(o). Thus, the appropriate effective date for the award of TDIU is January 7, 2008, after the currently assigned effective date of October 14, 2007. The Board is sympathetic to the Veteran's contentions that he was not aware he could file for VA compensation until 2001. The Board has also considered the Veteran's statements regarding his pattern of marginal employment since discharge. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection earlier than October 14, 2007 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400(b)(2)(i). ORDER Entitlement to an effective date earlier than October 14, 2007 for the award of a TDIU is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs