Citation Nr: 1758085	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  11-27 569	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an effective date prior to July 31, 2007, for a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from July 1978 to September 1981.

This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2008 and July 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Huntington, West Virginia, and Reno, Nevada.  The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2012. 

The Board, in a November 2014 decision, granted an earlier effective date of March 31, 2010, for TDIU as well as for service connection for a mood disorder.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in August 2015, the Court granted a Joint Motion vacating the decision to the extent that an earlier effective date had not been assigned. 

In a December 2015 decision, the Board remanded the issue of entitlement to an effective date prior to March 31, 2010, for the grant of TDIU and granted an effective date of May 5, 2007, for service connection for a mood disorder.  That matter is thus no longer before the Board.  In March 2017, the RO granted an effective date of July 31, 2007, for the award of TDIU, and this appeal continues.  As the requested medical opinion was obtained, the Board finds the remand directives have been substantially complied with, and the matter of the effective date of the TDIU again is before the Board.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran's representative has pointed out that the Veteran filed a notice of disagreement with both the May 5, 2007, effective date and the disability rating for mood disorder assigned in a March 2016 rating decision.  As it appears that the RO is taking action in regard to this NOD, the Board will not at this time take jurisdiction of this claim, but rather refer these matters to the RO for appropriate action.  



FINDINGS OF FACT

1.  Effective May 5, 2007, the Veteran met the schedular criteria for TDIU as he was assigned a combined 60 percent disability rating for his service connected disabilities of mood disorder, rated 30 percent; right femur/knee condition, rated 20 percent; left hip condition, rated 10 percent; back condition, rated 10 percent, and a left knee condition, rated noncompensable, which were of the same body system (i.e., musculoskeletal) and/or of common etiology (i.e., secondary to the orthopedic disorders).  

2.  A TDIU claim was received on July 31, 2007; his claim of service connection for mood disorder was received September 8, 2006.

3.  It is factually ascertainable that the Veteran was precluded from securing and following a substantially gainful occupation due to his service-connected disabilities from July 1, 2007.


CONCLUSION OF LAW

The criteria for an effective date of July 1, 2007, and no earlier, for the grant of entitlement to a TDIU have been met.  38 U.S.C.§§ 1555, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by a letter dated in August 2007.  See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  VA also met its duty assist the Veteran.  VA obtained all relevant records and associated with the claims file.  Accordingly, the Board will address the merits of the claim.

II.  EED for TDIU-Law

In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2017).  When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award 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 that date.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). 

A "claim" is defined broadly to include 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) (2017).  Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155 (a) (2017).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. 

The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 

The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). 

To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more.  38 C.F.R. § 4.16 (a).  Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16 (a), may receive extraschedular consideration under 38 C.F.R. § 4.16 (b). 

In Rice v. Shinseki, 22 Vet. App. 447, 453, 455 (2009), the Court held that when a Veteran appeals the initial disability rating for a service-connected disability and also submits evidence of unemployability, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is warranted.  Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o).  See Rice, 22 Vet. App. at 454.

Here, as discussed above, the underlying TDIU claim is part and parcel of the Veteran's claim for an increased initial rating for mood disorder.  Thus, the earliest possible effective date for the Veteran's TDIU claim is the date of his underlying service connection claim.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  The Veteran's claim of service connection for mood disorder, as identified in the December 2015 Board decision, was received September 8, 2006.  Accordingly, the earliest possible effective date for the assignment of a TDIU is September 8, 2006.


III.  Discussion and Analysis

For purposes of TDIU, the Veteran's disabilities are considered one disability as they are of a common etiology (in-service accident) and/or affect a single body system.  See 38 C.F.R. §4.16 (a)(2), (3).  As a result, the combined schedular disability rating of 60 percent meets the minimum percentage requirements for one disability for consideration of a TDIU on a schedular basis effective from May 5, 2007.  38 C.F.R. §§ 4.16 (a), 4.25.

The salient facts are as follows.  The Veteran has been assigned an effective date of May 5, 2007, for service connection for a mood disorder.  That is the date of a VA hospitalization and treatment for adjustment disorder with depressed mood following the receipt of the Veteran's September 8, 2006, claim for service connection for mood disorder.  The Veteran filed his claim for TDIU on July 31, 2007, alleging that he could not work due to the combined effects of a non-service connected medical condition in 1995 along with bilateral femur fracture and personality disorder.  In his TDIU application, he reported that he last worked in May 1995 for the U.S. Postal Service.  He also reported that he began receiving Social Security Disability benefits in May 1996.  See July 2007 VA form 21-8940.  The record reflects that this is for a non-service connected medical condition.

The Board remanded this claim in December 2015 in order to obtain a physician's opinion assessing the effect of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation prior to March 31, 2010.  The physician was to consider that the grant of service connection for a mood disorder has been in effect only since May 5, 2007, and this disability should not be contemplated in any determination of whether service-connected disabilities precluded substantially gainful employment prior to that date.  Full consideration was to be given to the Veteran's status post right femur fracture, left hip degenerative joint disease, left knee injury, and lumbosacral strain, as service connection has been established for all of those disabilities since July 21, 1994, or earlier.  

The physician was also asked to carefully address the significance of an August 2009 situational work assessment.  If the physician did not find that this assessment signified that the Veteran at that time was precluded from substantially gainful employment, he or she should was asked to so state.  If, however, the physician found that the Veteran was unable to work due to service-connected disabilities prior to March 31, 2010, he or she was asked to provide an approximate date of when such unemployability arose.  

A VA medical opinion was provided in March 2016 by a physician who reviewed the claims folder, VBMS, virtual VA and CPRS records.  The physician made a detailed report of the Veteran's pertinent history, including his car accident in 1981 resulting in bilateral femoral fracture, his work at the post office until 1993, his treatment for increasing pain including at the VA orthopedic clinic in July 2007 for bilateral femoral fracture and bilateral hip arthralgia, and pain and limitations.  She also reviewed and discussed the August 2009 situational work assessment.  

The VA physician then made the following statement:

Overall, after my review of records, from his service connected femur fracture residuals, hip, knee condition, lumbosacral conditions, Veteran has limitations in prolonged standing, prolonged walking, heavy lifting, prolonged sitting, prolonged driving. Since he requires chronic opioid narcotic use for pain control, he cannot operate heavy machinery or have employment as driver. The chronic narcotic use would also risk impairing judgement and efficiency for tasks requiring reasoning, fast decisions, prompt communication or decision making such as security dispatcher, etc. Based on records review residuals of service connected back, femur, knee conditions would limit work to sedentary work since 7/2007. His mental health condition would limit work also based on 10/2007 notes he has problems with interpersonal skills at work even doing sedentary work had irritability and difficulty with supervisor. His chronic pain interferes with sleep and that will decrease stamina and concentration during day for performing and completing tasks. Records note he cannot complete multiple tasks and needs more time to complete assignments since work flow slow.

As noted above, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (2017).  Upon review, the Board concludes that from July 1, 2007, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, and therefore the criteria for an effective date of July 1, 2007, and no earlier, are met for the grant of TDIU.  See Harper, supra.  That is the month from which that he had significant work restrictions based on his service-connected disabilities, as identified by the VA physician in March 2016.  It is undisputed that he had not worked for some time prior to that date, and that he had been deemed disabled for work by SSA for other reasons prior to that date.  Thus, the Board will resolve reasonable doubt in the Veteran's favor and conclude that the disability was present as of July 1, 2007.  Moreover, the Veteran did not meet the minimum criteria for TDIU until May 5, 2007, and the facts do not demonstrate that he was precluded from employment by virtue of his service-connected disabilities prior to July 1, 2007.  

The Board rejects the Veteran's argument that the effective date for TDIU should be prior to July 1, 2007.  See p. 5, hearing transcript, wherein the Veteran argues for a July 2006 effective date.  His opinion is less probative than that of the 2016 VA physician indicating that the Veteran's disabilities produced significant medical limitations that would preclude work as of July 2007.  This opinion from a neutral skilled professional is comprehensive and not inconsistent with the record, and is accorded significant probative weight by the Board.  

The Board also notes that even when the percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  See 38 C.F.R. § 4.16 (b).  As noted above, the VA examiner opined that as of July 2007, and not before, the Veteran had significant limitations impacting his ability to secure and retain gainful employment as a result of his service-connected disabilities.  The Board has fully considered the lay statements and those of the representative in this regard; however, the 2016 VA examination is more probative as the medical doctor evaluated the severity of the Veteran's service-connected disabilities.  

An effective date of July 1, 2007, is warranted.  However, the preponderance of the competent, credible, and probative evidence is against a finding that Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment prior to July 1, 2007, and an effective date prior to July 1, 2007, for TDIU must be denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.340, 3.341, 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  As the preponderance of the evidence does not show that he was unable to secure and follow a substantially gainful occupation solely by reason of his service-connected disabilities prior to that date, the Board does not find that referral for extraschedular consideration is warranted.  38 C.F.R. § 4.16 (b).


ORDER

An effective date of July 1, 2007, is granted for TDIU; an effective date prior to July 1, 2007, is denied.




____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs