Citation Nr: 1748366	
Decision Date: 10/26/17    Archive Date: 11/03/17

DOCKET NO.  11-26 662	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to an effective date earlier than July 29, 2005, for the assignment of a total disability rating due to individual unemployability (TDIU).

2.  Entitlement to special monthly compensation based on aid and attendance (SMC).


REPRESENTATION

Veteran represented by:	Tiffany R. Bodger, Attorney


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel



INTRODUCTION

The Veteran had active service in the Navy from September 1964 to December 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In November 2010, the RO granted a TDIU effective January 12, 2010, which the Veteran appealed to the Board.  In September 2014, the Board remanded the Veteran's claim for an effective date prior to January 12, 2010, for further development.  In July 2015, the RO granted an earlier effective date of December 23, 2008, for the grant of a TDIU.  In May 2017, the RO granted an earlier effective date of July 29, 2005.  As such, the Board is satisfied that there was at the very least substantial compliance with its remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-157 (1999).  

The issue of entitlement to SMC is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Prior to July 29, 2005, the Veteran had no service-connected disabilities and was not in receipt of VA compensation benefits.


CONCLUSION OF LAW

The criteria for an effective date earlier than July 29, 2005, for the grant of a TDIU have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claim at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined.

The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

TDIU

The Veteran was awarded a TDIU by a November 2010 rating decision effective January 12, 2010.  A July 2015 rating decision granted an earlier effective date of December 23, 2008, for the award of a TDIU.  A May 2017 rating decision granted an earlier effective date of July 29, 2005, for the award of a TDIU as that was the date the Veteran was first granted service-connected for his posttraumatic stress disorder (PTSD).  He contends that he is entitled to a TDIU prior to July 29, 2005.

Disability evaluations are determined by comparing the Veteran's symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.

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, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities.  38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993).  Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability.  See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled.  "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent."  Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).

Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15).  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Id.

In this case, the Veteran was not service-connected for any disabilities prior to July 29, 2005.  For this reason, he does not meet the percentage rating standards for TDIU at 38 C.F.R. § 4.16 (a), and no consideration to such benefits are available under 38 C.F.R. § 4.16 (b).  As there was no service-connected disability at that time, there is no legal basis upon which to consider the claim for TDIU prior to July 29, 2005.

Accordingly, the claim is without legal merit, and is therefore denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that where the law is dispositive, the claim must be denied due to a lack of legal merit).


ORDER

An effective date earlier than July 29, 2005, for the assignment of a TDIU is denied.


REMAND

In July 2017, the RO denied entitlement to SMC.  The Veteran filed his notice of disagreement in August 2017 regarding the July 2017 rating decision.

This notice of disagreement is still pending, and a remand is required for a statement of the case on this issue.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

Accordingly, the case is REMANDED for the following action:

Adjudicate the issue of entitlement to SMC; if the benefit sought cannot be granted, issue a statement of the case in accordance with applicable law and regulations.  The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue.  If a timely substantive appeal is not filed, this claim should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.

The Veteran has the right to submit additional evidence and argument on the matter 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 that are 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).



____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs