Citation Nr: 1745545 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 14-27 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the right lower extremity. 2. Entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017, for peripheral neuropathy of the left lower extremity. 3. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, prior to August 4, 2016; and in excess of 60 percent from August 4, 2016. 4. Entitlement to an effective date prior to December 17, 2013, for entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael Miskowiec, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty September 1969 to February 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). An August 2011 rating decision, in pertinent part, continued a 20 percent rating for diabetes mellitus, type II. A November 2011 rating decision continued a separate 10 percent rating for peripheral neuropathy of the right and left lower extremities. An April 2015 rating decision granted separate increased 20 percent ratings for peripheral neuropathy of the right and left lower extremities and TDIU, effective August 20, 2014. A March 2017 rating decision granted an increased rating of 60 percent for diabetes mellitus, type II, effective August 4, 2016. Separate increased ratings of 40 percent were also granted for peripheral neuropathy of the left and right lower extremities, effective February 28, 2017. Entitlement to an earlier effective date of December 17, 2013, for the grant of a TDIU was also granted. As the effective date granted was not the earliest requested, the issue remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge at the RO in Huntington, West Virginia. A transcript of the hearing is part of the record. The Veterans Law Judge who held the hearing has left the Board, and, there is no indication the Veteran was notified of this. However, as the Veteran has withdrawn his claims on three issues and the claim for an earlier effective date for TDIU is being granted to the date requested by the Veteran's attorney, January 27, 2012, the Board finds there is no prejudice to the Veteran in proceeding to adjudicate the appeal. In July 2016, the appeal was remanded for further evidentiary development. The Board notes the Veteran has also submitted a timely notice of disagreement on the issue of entitlement to a higher rating for posttraumatic stress disorder (PTSD). VA electronic records indicate the RO is currently developing the claim, and has not issued a statement of the case. Therefore, the Board does not have jurisdiction of the claim at this time. FINDINGS OF FACT 1. On April 12, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the appeal on the issues of: (1) entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the right lower extremity; (2) entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the left lower extremity; and (3) entitlement to an increased rating in excess of 20 percent, prior to August 4, 2016; and in excess of 60 percent from August 4, 2016, for diabetes mellitus, type II, is requested. 2. Resolving all reasonable doubt in the Veteran's favor, he filed an informal claim for TDIU on January 27, 2012, and was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of that date. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, through his attorney, on the issue of entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the right lower extremity, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for withdrawal of an appeal by the Veteran, through his attorney, on the issue of entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017, for peripheral neuropathy of the left lower extremity, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 3. The criteria for withdrawal of an appeal by the Veteran, through his attorney, on the issue of entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, prior to August 4, 2016; and in excess of 60 percent from August 4, 2016, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 4. An effective date of January 27, 2012, but no earlier, is warranted for the award of entitlement to a TDIU on a schedular basis. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his attorney has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his attorney, has withdrawn the appeal on the issues of (1) entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the right lower extremity; (2) entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the left lower extremity; and (3) entitlement to an increased rating in excess of 20 percent, prior to August 4, 2016; and in excess of 60 percent from August 4, 2016, for diabetes mellitus, type II; and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals on those issues and they are dismissed. Entitlement to an Earlier Effective Date for TDIU The Veteran asserts that he is entitled to TDIU from January 27, 2012. The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Such a determination will be made on the basis of facts found. 38 C.F.R. § 3.400(a). An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). When a claim has been filed which meets the requirements of § 3.151, an informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c). The report of an examination or hospitalization may constitute an informal claim for increase when the report relates to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b)(1). The above noted effective date and claim regulations were revised or removed effective March 24, 2015. However, the revisions are only effective for claims filed on or after March 24, 2015, and do not apply to claims pending as of that date. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). Therefore, since the Veteran's claim was filed prior to March 2015, the revisions do not apply and will not be discussed further herein. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). All cases where a Veteran does not meet the schedular criteria but is unemployable by reason of service-connected disabilities should be submitted to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). There are three determinations that the Board must make to determine the proper effective date. First, the date that VA received the Veteran's claim. Second, the date that the percentage requirements for § 4.16(a) were met. Third, the date that the Veteran's service-connected disability or disabilities rendered him unable to secure and follow a substantially gainful occupation; i.e., the date that his service-connected disabilities or disability rendered him unemployable. The Veteran filed a formal application for an increased rating based on unemployability on February 12, 2014. In a March 2017 Supplemental Statement of the Case, the RO granted an earlier effective date of December 17, 2013, based on a letter from the Veteran's representative, which noted "We have also contended that [the Veteran] is totally disabled due to his service connected conditions" as a claim for entitlement to a TDIU. In a letter received by VA on March 22, 2012, referenced by the Veteran's attorney in the December 2013 letter, his attorney had stated that "We contend that [the Veteran] is totally and permanently disabled due to his service connected conditions. Therefore, [the Veteran] should be granted total disability on a schedular or extra-schedular basis." The Board finds that the March 2012 letter is an informal claim for entitlement to a TDIU, as the Veteran's representative specifically requested that the Veteran be granted TDIU. The Veteran filed a claim for entitlement to service connection for PTSD in a statement received on January 27, 2012. As noted above, PTSD has been granted at a 50 percent disability rating effective January 27, 2012, and the Veteran has initiated an appeal of that rating. In the claim, the Veteran stated "I intend this to be a claim for all benefits to which I may be entitled including entitlement to service connected compensation. I intend that my claim for compensation include all disabilities or medical conditions that I have." The Veteran stated that "I was fired between five and ten times from a job my brother got me because I was unreliable due to my psychological condition." The Board finds that this statement may be construed as an informal claim for a TDIU. The statement indicated he wished to file a claim for all benefits to which he may be entitled and he stated that he was fired between five and ten times from a job because of his psychological condition. The Board notes that the only rating decision issued between the January 2012 statement and the formal adjudication of his TDIU claim by the RO, was a March 2012 rating decision, which denied his claim for service connection for PTSD. As the Veteran appealed this decision, it did not become final. Therefore, the Veteran's claim for TDIU was not implicitly denied. "The 'implicit denial' rule provides that, in certain circumstances, 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 Board has considered whether there are any other claims that could be construed as claims for a TDIU prior to January 27, 2012. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a TDIU claim is part and parcel of an appeal of an assigned rating where evidence of unemployability is submitted). In a January 2011 claim, the Veteran filed a claim for higher ratings for diabetes mellitus, type II, and peripheral neuropathy of the lower extremities. The Board finds the January 2011 increased rating claim cannot be construed as claim for a TDIU. The evidence in January 2011 and on May 2011 VA examination evaluating peripheral neuropathy and diabetes mellitus does not indicate the Veteran was unable to work due to his service-connected disabilities. The May 2011 VA examination report reflects that the Veteran's diabetes and complications would affect his occupation by requiring him to be assigned different duties and have increased absenteeism. A May 2011 VA examination indicated the Veteran's peripheral neuropathy would cause increased absenteeism. The report noted the Veteran had retired in 2003 due to back and knee conditions. The report did not indicate the Veteran would be unable to work due to his disabilities. In this case, the Veteran did not specifically argue, and the record does not otherwise reflect, that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, prior to January 27, 2012. Therefore, the Board finds that neither the January 2011 claim nor May 2011 VA examination reports raised an informal claim for a TDIU. 38 C.F.R. §§ 3.151, 3.155, 3.157. Accordingly, the Board finds that there was no claim pending prior to January 27, 2012, and that date is the appropriate date of claim for the Veteran's TDIU claim. Hence, the Board must consider when entitlement to a TDIU arose, and whether it was factually ascertainable within the one year prior to his date of claim of January 27, 2012, that his service-connected disabilities rendered him unemployable. The Board finds the earliest date on which it was factually ascertainable that the Veteran was entitled to a TDIU was January 27, 2012. The Veteran had a combined disability rating of 70 percent from January 27, 2012. On January 27, 2012, the Veteran was service-connected for diabetes mellitus, type II, rated as 20 percent disabling; PTSD, rated as 50 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; and erectile dysfunction rated as noncompensable. As the Veteran's PTSD was rated as 50 percent disabling, and he had a combined disability rating of 70 percent from January 27, 2012, the Veteran met the schedular criteria for a TDIU on that date under 38 C.F.R. § 4.16(a). The Board finds that from January 27, 2012, the effective date of service connection for PTSD, it was factually ascertainable that the Veteran met the criteria for a TDIU. At the October 2015 Board hearing, the Veteran testified that he last worked in 2000 and had previously worked as a machinist. Therefore, he was unemployed throughout the appeal period. A January 27, 2012, VA treatment record indicates the Veteran's symptoms of PTSD had worsened. The VA treatment record indicated the Veteran stated his wife thought he was having mental health issues, and had asked him to get mental health clinic help. He reported that he had been drinking and his wife was not staying with him. The record noted the Veteran had PTSD, depression, insomnia and marital disharmony. He broke out in tears during the clinic. His peripheral neuropathy also required an increase in medication. An August 2014 VA examination indicates that the Veteran's peripheral neuropathy limited his ability to perform physical as well as sedentary tasks. The VA examiner found walking, standing and driving was affected by his lower extremities. The Board finds that the Veteran's PTSD symptoms, in addition to peripheral neuropathy symptoms which warranted an increase in medication on January 27, 2012, support a finding that the Veteran was unable to work due to his service-connected disabilities from January 27, 2012, the date of his informal claim for TDIU and the date he met the schedular criteria for a TDIU. The Board finds it was not factually ascertainable prior to January 27, 2012, that the Veteran's service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation, such that entitlement to a TDIU would have been warranted. As noted above, the May 2011 VA examination report indicated the Veteran's service-connected diabetes mellitus and peripheral neuropathy would cause increased absenteeism and he would be assigned different duties, but they did not show the Veteran was unable to work due to his service-connected disabilities. Additionally, prior to January 27, 2012, the Veteran was not service-connected for PTSD. A March 2011 VA treatment record indicates the Veteran reported he felt a lot better since he started taking insulin. He did not take medication for PTSD. A July 2011 VA treatment record indicated the Veteran had uncontrolled diabetes mellitus, and PTSD, not on medication. The Board finds that entitlement did not arise to TDIU until January 27, 2012, when the Veteran became service-connected for PTSD, and it was factually ascertainable that the symptoms of his service-connected PTSD and peripheral neuropathy had worsened. In conclusion, the Board finds that the evidence is at least in equipoise on the issue of whether it was factually ascertainable that the Veteran's service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and work background from January 27, 2012, the date of his informal claim for a TDIU. Considering the entire record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a TDIU based on the Veteran's service-connected disabilities, effective January 27, 2012. 38 C.F.R. § 4.16(a). ORDER Entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017 for peripheral neuropathy of the right lower extremity, is dismissed. Entitlement to an increased rating in excess of 10 percent, prior to August 20, 2014; in excess of 20 percent, from August 20, 2014, through February 27, 2017; and in excess of 40 percent, from February 28, 2017, for peripheral neuropathy of the left lower extremity, is dismissed. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, prior to August 4, 2016; and in excess of 60 percent from August 4, 2016, is dismissed. Entitlement to an earlier effective date of January 27, 2012, but no earlier, for entitlement to a TDIU is granted, subject to regulations governing the payment of monetary awards. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs