Citation Nr: 1753467 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-26 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to February 27, 2009, for the award of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from March 1969 to November 1971, including service in the Republic of Vietnam. He is the recipient of the Army Commendation Medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A June 2016 Board decision denied entitlement to an effective date prior to February 27, 2009, for a grant of entitlement to TDIU. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). While this matter was pending before the Court, in September 2017, the appellant's attorney and a representative of VA's Office of the General Counsel filed a Joint Motion for Remand on the grounds that the Board failed to provide an adequate statement of reasons or bases for its determination. In a September 2017 order, the Court granted the motion and remanded the matter to the Board for action consistent with the Joint Motion. The appellant withdrew his request for a Board hearing in correspondence received in November 2015. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). FINDINGS OF FACT 1. On May 18, 2004, the appellant's VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) was received by VA. 2. In an August 2004 rating decision, the RO denied the claim for entitlement to a TDIU. The appellant did not appeal the August 2004 rating decision; therefore, it is final. 3. On February 27, 2009, the appellant's VA Form 21-8940 was received by VA. 4. It is not factually ascertainable that the appellant became unable to secure or follow substantially gainful employment as a result of his service-connected disabilities in the year prior to receipt of the February 27, 2009, TDIU claim. CONCLUSION OF LAW The criteria for an effective date earlier than February 27, 2009, for the award of TDIU have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law Unless specifically provided otherwise, 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. 38 U.S.C. § 5110(a). 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. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2017); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). A TDIU claim is a claim for increased compensation; thus, the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability ratings 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, and that, if there are two or more 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). III. Analysis The appellant contends that he is entitled to an effective date earlier than February 27, 2009, for the grant of his claim for entitlement to a TDIU. He indicates that the medical evidence proves that he has been unemployable since as early as 2002, but definitely since 2004. See January 2010 Notice of Disagreement; June 2010 VA Form 9. Based on the evidence of record, the Board finds that the currently-assigned effective date of February 27, 2009 for the award of a TDIU under 38 C.F.R. § 4.16 is the appropriate effective date in this case. The record reflects that on May 18, 2004, the appellant submitted a VA Form 21-8940, alleging that he was unemployable due to his service-connected posttraumatic stress disorder (PTSD). On that form, the appellant indicated that he had not worked a full-time job since 1995, and that he was essentially unemployed except for two short-term part-time jobs of one and two month durations. In an August 2004 rating decision, the RO denied the claim of entitlement to a TDIU. The appellant did not appeal the August 2004 rating decision; therefore, it became final. On February 27, 2009, the appellant again submitted a VA Form 21-8940. The evidence does not show, nor does the appellant contend, that he filed an earlier claim for TDIU, either independently or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). On the February 2009 application, the appellant indicated that he became too disabled to work as a result of his service-connected PTSD in 1992. He indicated that he had worked for 5 months on a part time basis as a truck driver in 2007 and for three months in 2008. He indicated that he had earned $1,000 in total in the past 12 months. The appellant indicated that as a result of his service-connected disability, he had been prevented him from holding gainful employment for years, since 1991. At the time, the appellant was service-connected for one disability, PTSD, for which a 50 percent rating was in effect. In correspondence received in March 2009, the appellant stated that he experienced nightmares, difficulty sleeping; and fear of going to crowded places. The appellant was afforded a VA examination in March 2009, where he reported that he had tried some antidepressant medications to no avail. He reported that he has had over 83 different jobs since his discharge from service due to his inability to function under stressful conditions. He also reported that he recently started treatment at the Vet Center. In March 2009, VA received Vet Center treatment records which record the appellant's reports of chronic occupational problems due to PTSD. In a June 2009 rating decision, the RO explained that it had accepted the appellant's claim for a TDIU as also being a claim for an increased rating for his service connected disability, and increased his PTSD rating from 50 percent to 70 percent, effective February 27, 2009. In a December 2009 rating decision, the RO awarded TDIU from February 27, 2009. The appellant appealed the effective date assigned by the RO. In his January 2010 notice of disagreement, the appellant indicated that his treatment provider, Dr. C.M., had determined that he was unemployable in 2004. He made a second finding of unemployability in March 2009. After considering the record in its entirety, the Board concludes that the criteria for an effective date earlier than February 27, 2009, for the assignment of a TDIU have not been met. As a preliminary matter, the Board notes that the appellant's previous 2004 claim for a TDIU was denied in an August 2004 rating decision. Since he did not file a Notice of Disagreement with that rating decision, the decision became final. The appellant's next claim for TDIU was received by VA on February 27, 2009, the effective date currently in effect. The appellant has pointed to no earlier pending claim, either formal or informal, and the Board's review of the record reveals no communication evidencing an intent to seek an increased rating for PTSD or entitlement to TDIU, are there clinical records evidence a worsening of his service-connected PTSD which could serve as an informal claim under 38 C.F.R. § 3.157. The appellant does not argue otherwise. Thus, the Board finds that there is nothing in the record which could be construed as a claim for a TDIU prior to February 27, 2009. See 38 C.F.R. §§ 3.151, 3.155, 3.157 (2017); Servello v. Derwinski, 3 Vet. App. 196 (1992) (holding that the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). As noted above, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). An exception to that rule is provided for in section 5110(b)(2). Under that provision, an effective date of an award of increased compensation may be assigned from 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. § 5110(b)(2); Quarles, 3 Vet. App. at 135. Stated another way, three possible effective dates may be assigned pursuant to this provision, depending on the facts of the case. First, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 521 (1997); see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). Having reviewed the record, the Board concludes that it is not factually ascertainable from the record that the appellant became unable to secure or follow substantially gainful employment as a result of his service-connected disabilities in the year prior to receipt of the February 27, 2009, TDIU claim. There is no probative evidence of record which shows that the appellant became unemployable between February 27, 2008, one year prior to the date of receipt of his claim, and February 27, 2009. A January 2009 report from the Vet Center, received in March 2009, states that the appellant has not been able to work for many years. The March 2009 VA examiner stated that the appellant appeared unemployable due to his PTSD symptoms. However, the examiner did not opine that the appellant became unemployable between February 27, 2008, and February 27, 2009. During such examination, the appellant reported that he had only held two part-time jobs since his March 2004 VA examination. He worked as a part-time van driver in 2007 for four months and worked as a part-time truck driver in 2008 for a short period. The appellant's 2007 employer reported that he worked 12 hours per week between February and June 2007 and lost time due to disability on four occasions. The employer also reported that the appellant left on his own. The Board observes that, in an unappealed August 2004 rating decision, VA found that the preponderance of the evidence was against the appellant being unable to secure and follow substantially gainful employment. The Board finds that the January 2009 Vet Center report and the March 2009 VA examination report are highly probative evidence showing that the appellant did not become unemployable between February 27, 2008, and February 27, 2009. Rather, it appears more likely than not that the appellant became unemployable after August 2004 and before February 27, 2008, as the appellant himself reported that he only held two part-time jobs for short periods between August 2004 and February 27, 2009, one of which was in 2007 and the other was at an unspecified point in 2008. As the appellant attempted to work in 2007 and 2008, but was unable to hold even these part-time jobs for very long, the Board finds that the appellant was already unemployable in 2007 either while he was working 12 hours per week as a van driver or just after he ended such employment in June 2007. Thus, the preponderance of the evidence is against the appellant becoming unemployable between February 27, 2008, and February 27, 2009. In light of the facts above, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than February 27, 2009. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an effective date prior to February 27, 2009, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs