Citation Nr: 1754845 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-45 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating greater than 60 percent for diabetic nephropathy. 2. Entitlement to an effective date earlier than February 20, 2007 for the grant of service connection for diabetic nephropathy. 3. Entitlement to an effective date earlier than June 27, 2010 for the grant of a total disability rating based on individual unemployability (TDIU). 4. Entitlement to an effective date earlier than November 5, 2008 for the grant of basic eligibility to Dependents' Educational Assistance (DEA). REPRESENTATION Appellant represented by: Christopher L. Loiacono, Agent National Veterans Disability Advocates ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2014 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The TDIU and DEA issues were previously before the Board in December 2016 at which time they were remanded for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The December 2016 remand also noted that the diabetic nephropathy issues were in appellate status but were not currently before the Board because these issues were awaiting a Board hearing pursuant to an August 2016 request for a Board hearing. Pursuant to the December 2016 Board remand, the Veteran was issued an SOC regarding the TDIU and DEA issues in August 2017 and he perfected appeal in September 2017. Significantly, the Veteran requested a Board hearing regarding the TDIU and DEA issues in his September 2017 substantive appeal but withdrew all pending hearing requests in October 2017 correspondence. Significantly, while the July 2016 rating decision assigned an effective date of June 27, 2010 for DEA, a subsequent July 2017 rating decision assigned an effective date of November 5, 2008 for the DEA award. This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2014). The issues of entitlement to an initial disability rating greater than 60 percent for diabetic nephropathy and entitlement to an effective date earlier than February 20, 2007 for the grant of service connection for diabetic nephropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An inferred claim for entitlement to a TDIU was received by VA in December 2009 and a formal claim for entitlement to a TDIU was received by VA in July 2010; the Veteran first became eligible for a TDIU on a schedular basis on December 28, 2006. 2. Since December 23, 2009, the evidence demonstrates that the Veteran's service-connected disabilities have precluded all forms of substantially gainful employment. 3. The Veteran did not have a permanent and total disability prior to November 5, 2008. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 23, 2009 for the grant of a TDIU have been met. 38 U.S.C. §§ 5101(a), 5103A, 5107, 5110 (2014); 38 C.F.R. §§ 3.1(p)(r), 3.155, 3.156, 3.157, 3.159, 3.321(b), 3.341, 3.400(o)(2), 4.16 (2017). 2. The criteria for an effective date earlier than November 5, 2008, for the award of DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3501, 5110 (2014); 38 C.F.R. §§ 3.807, 21.3021 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the TDIU claim adjudicated below, an August 2011 letter advised the Veteran of the evidence and information necessary to substantiate his TDIU claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Also, the Board finds that there was substantial compliance with the December 2016 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, pursuant to the December 2016 Board remand, an SOC regarding the TDIU and DEA issues was issued in August 2017. Accordingly, the Board finds that there has been substantial compliance with the December 2016 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). II. TDIU The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). The effective date of an award based on a claim for increase of compensation "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.A. § 5110(a). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: 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.A. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Prior to amendments to the applicable regulation in March 2015, a claim was "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). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). In this case, the Veteran submitted a claim for service connection for diabetes on September 11, 2005. By rating decision dated in April 2009 the RO granted service connection for diabetes, assigning an initial 20 percent disability effective September 11, 2005. The Veteran disagreed with this initial rating and perfected an appeal. In July 2010, and during the course of the Veteran's appeal for a higher initial rating for his diabetes, the Veteran submitted a formal claim for a TDIU. Significantly, it was noted that the Veteran last worked in June 2010 due to his service-connected disabilities. By rating decision dated in May 2014, the RO granted a TDIU effective July 22, 2010, the date of the formal claim for a TDIU. Subsequently, by rating decision dated in July 2016, the effective date for the award of a TDIU was changed to June 27, 2010, the date that the Veteran reportedly last worked. The Veteran's attorney disagreed with the effective date assigned for the TDIU. A review of the record reveals that the Veteran likely last worked full-time in approximately August 2007. Significantly, both a January 2007 VA treatment record as well as a March 2007 private treatment record note that the Veteran was employed at those times, however, a July 2017 response from the Social Security Administration indicates that the Veteran had been in receipt of Social Security disability benefits since August 2007. Also, a July 2017 response from VA vocational rehabilitation shows that the Veteran applied for vocational training on December 23, 2009 and was found not feasible to return to work. Regarding the Veteran's employment from approximately May 2009 to July 2009 and again from April 2010 to June 2010, the Board notes that this was not full-time employment as it appears to have been both seasonal and part-time. Significantly, a June 2010 document from the Office of Personnel Management found that this employment was "intermittent" and that it was terminated due to "lack of work." Furthermore, in a May 2016 statement Dr. D.D. reviewed the claims file and opined that the Veteran was unable to maintain gainful employment since December 28, 2006 due to his diabetic neuropathy, coronary artery disease, and diabetes mellitus. Initially, while the RO determined that the Veteran's TDIU claim was essentially rendered moot from November 5, 2008 to June 27, 2010, the effective date of a maximum total 100 percent rating, a 100 percent disability rating does not necessarily render the issue of entitlement to a TDIU moot. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In such cases, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. As such, the Veteran's claim for an earlier effective date for his TDIU is not moot. Next, the Board finds that while the Veteran did not submit a formal claim for a TDIU until July 2010, this was part of the Veteran's appeal for an increased rating for diabetes which had been pending since September 2005 pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) prior to the December 2016 Board decision. The Board has construed the December 23, 2009 claim for vocational training as a claim for a total rating. Having determined that December 23, 2009 is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for a total rating were met beginning December 23, 2009. TDIU ratings for compensation may be assigned, where the scheduler 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. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). It is clear from the language of this regulation that what is contemplated as marginal employment is employment that does not accord the veteran a living wage. See Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991) [for the purposes of 38 C.F.R. § 4.16(a), substantially gainful employment suggests a living wage]. Marginal employment may also be considered to exist when income exceeds the poverty threshold but is earned, for example, in a protected environment, such as a family business or sheltered workshop. Id. Consideration shall be given in all claims to the nature of the employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Veteran's service-connected disabilities presently include bilateral hearing loss (70 percent disabling effective November 5, 2008 and 100 percent disabling effective January 17, 2012), diabetic nephropathy (60 percent disabling effective February 20, 2007), coronary artery disease (30 percent disabling effective September 11, 2006 and 60 percent disabling effective April 16, 2012), diabetes mellitus, type II with erectile dysfunction and eczema skin condition (20 percent disabling effective September 11, 2005 and 60 percent disabling effective March 28, 2013), major depressive disorder (50 percent disabling effective October 10, 2012), peripheral neuropathy of the right upper extremity (10 percent disabling effective December 28, 2006 and 30 percent disabling effective April 30, 2013), peripheral neuropathy of the left upper extremity (10 percent disabling effective December 28, 2006 to April 30, 2013), stocking glove neuropathy of the right lower extremity (10 percent disabling effective December 28, 2006 and 20 percent disabling effective July 7, 2011), stocking glove neuropathy of the left lower extremity (10 percent disabling effective December 28, 2006 and 20 percent disabling effective July 7, 2011), status post-surgical excision of lipoma with residual scar and hypersensitivity (0 percent disabling effective June 9, 1970 and 10 percent disabling effective November 5, 2008), and tinnitus (10 percent disabling effective April 17, 2009). Significantly, a TDIU has been assigned as of June 27, 2010, the day following the Veteran's last day of employment in a seasonal/part-time position. However, there is medical evidence that the Veteran was unemployable due to his service-connected disabilities as early as December 28, 2006. There is also an indication that the Veteran stopped working in August 2007, likely due to his service connected disabilities. Furthermore, VA's vocational rehabilitation office found that it was not feasible for the Veteran to return to work effective December 23, 2009. Finally, the Veteran has met the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16(a) since December 28, 2006. As such, the Board finds that the criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met beginning December 23, 2009. III. DEA Basic eligibility exists for DEA benefits under 38 U.S.C. Chapter 35 where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of November 5, 2008, for basic eligibility for DEA benefits is directly related to an award of a 100 combined disability rating. As above, the Veteran has been awarded a TDIU effective December 23, 2009 which is later than the November 5, 2008 effective date for DEA benefits. Since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, the effective date of such eligibility cannot precede the November 5, 2008 effective date for the Veteran's combined 100 percent rating. Accordingly, although the Veteran contends that the effective date should be earlier than November 5, 2008, the assignment of an effective date prior to November 5, 2008 for the award of DEA benefits is precluded by law. See 38 U.S.C. §§ 3501 (a)(1), 5113(a); 38 C.F.R. §§ 3.807(a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). Because the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER An effective date of December 23, 2009, and no earlier, for the grant of a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. An effective date earlier than November 5, 2008 for the award of DEA benefits is denied. REMAND With regard to the Veteran's claim for an initial disability rating greater than 60 percent for diabetic nephropathy, the Board notes that this issue was last adjudicated in an August 2016 SOC and, since that time, relevant VA treatment records dated through May 2017 have been associated with the claims file. As such, the newly obtained VA treatment should be considered by the AOJ on remand. 38 U.S.C. § 7105(e)(1). Furthermore, the most recent VA examination pertaining to the Veteran's diabetes is dated in April 2014, over three years ago. Given the need to remand for other reasons, the Veteran should be afforded a new VA examination for his service-connected diabetic nephropathy. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to the claim for an effective date earlier than February 20, 2007 for the grant of service connection for diabetic nephropathy, the Board notes that this award stems from a September 11, 2005 claim for a higher initial rating for service-connected diabetes. The basis for this award was a February 20, 2007 private treatment record noting a diagnosis of chronic kidney disease as secondary to service-connected diabetes mellitus. It was also noted that the Veteran had a BUN of 32 and a creatinine of 2.8. A review of the February 20, 2007 private treatment record shows that the Veteran was "recently" treated for obstruction of both ureters at which time he had stents placed. Moreover, a February 14, 2007 computed tomography scan of the Veteran's ureters showed an obstruction of both kidneys secondary to calculi in the mid ureters. Also, the Veteran's laboratory readings showing a BUN of 32 and a creatinine of 2.8 are dated February 15, 2007, five days prior to the February 20, 2007 effective date assigned. Furthermore, it appears that the Veteran had an abnormal creatinine level as early as February 17, 2006. Given the uncertainty regarding when the Veteran first manifested diabetic nephropathy, a medical opinion should be obtained on remand. Finally, the most recent VA treatment records in the claims file are dated in May 2017 and the most recent private treatment records in the claims file are dated in May 2016. Given the need to remand for other reasons, on remand, the Veteran should have the opportunity to identify any other outstanding relevant private or VA treatment records. Any identified records, to include VA treatment records dated since May 2017, should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to identify any private or VA providers who have treated him for his claimed disorders. After securing any necessary authorizations, obtain any identified treatment records, to include VA treatment records dated since May 2017. The procedures outlined in 38 C.F.R. § 3.159 must be adhered to. 2. After completing the above and any other appropriate development, schedule the Veteran for an in-person examination to determine the current nature of the service-connected diabetic nephropathy. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Specifically, the examiner should indicate the nature and severity of all manifestations of such disorder. The examiner should specifically note whether the Veteran's nephropathy results in renal dysfunction and, if so, to what degree. The examiner should also indicate when the Veteran first manifested diabetic nephropathy. Specifically, the examiner should consider the following private treatment records received from Kaiser Permanente on March 18, 2011: * a February 20, 2007 private treatment recording showing that the Veteran was "recently" treated for obstruction of both ureters at which time he had stents placed. * a February 14, 2007 computed tomography scan of the Veteran's ureters showed an obstruction of both kidneys secondary to calculi in the mid ureters. * February 15, 2007 laboratory readings showing a BUN of 32 and a creatinine of 2.8. * A February 17, 2006 an "abnormal" creatinine level of 1.4. A complete rationale for the opinions expressed should be provided. If the reviewer cannot provide any of the requested opinions without resort to speculation, that conclusion also should be explained. 3. After completion of the above, to the extent possible, readjudicate the appeal. If any benefit sought on appeal is not granted in full, furnish a supplemental statement of the case and an opportunity to submit written or other argument in response before the electronic claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs