Citation Nr: 1802653	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  09-25 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an effective date prior to May 3, 2012 for the grant of a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Jeffrey J. Bunten, Attorney at Law


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Gregory T. Shannon, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 to July 1990, from January 1991 to February 1991, and from March 2003 to May 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In August 2015, the Veteran testified at a video-conference Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.


FINDING OF FACT

Prior to May 3, 2012, the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities.


CONCLUSIONS OF LAW

The criteria for a TDIU on an extra-schedular basis have been met as of March 2, 2007.  38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2017).

The criteria for a TDIU on a schedular basis have been met as of April 23, 2012.  38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).






REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A.  

This appeal arises from the Veteran's disagreement with the initial effective date assigned following the grant of entitlement to a TDIU.  Where an underlying claim for service connection, or in this case a TDIU, has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). 

In addition, the Board finds that the duty to assist the Veteran has been satisfied.  The Veteran's service treatment records (STRs) are on file, as are various post-service medical records, and VA examination reports.  

The Board also finds that the RO substantially complied with the Board's remand instructions of December 2015 by obtaining records from Social Security Administration (SSA), referring the Veteran's claim file to VA's Director of Compensation Service, and issuing a supplemental statement of the case.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

During the August 2015 hearing, the undersigned Veteran's Law Judge clarified the issue on appeal.  The actions of the undersigned Veteran's Law Judge supplement VCAA and complies with 38 C.F.R. § 3.103.

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009).

II.  Effective Date

In a July 2007 claim for increased rating for his service-connected cervical spine disability the Veteran reasonably raised the issue of unemployability in noting that he was awarded SSA benefits.  After appeal of an initial denial, this claim for TDIU was granted in a June 2012 rating decision.

The Veteran did not meet the schedular rating requirements for a TDIU under 38 C.F.R. § 4.16(a) until April 23, 2012, the effective date of the Veteran's 50 percent rating for posttraumatic stress disorder.  The record reflects that the Veteran was found to meet all the criteria of 38 C.F.R. § 4.16(a) effective May 3, 2012, the date the Veteran underwent a VA compensation examination.  The Board, in its December 2015 decision, remanded the issue of TDIU so the RO could refer the claim to the Director of VA's Compensation Service for a determination under 38 C.F.R. § 4.16(b).  

The Director rendered a negative opinion, finding that none of the objective medical evidence supports the contention that any of the Veteran's service-connected disabilities or a combination of the effects of the disabilities prevented all types of gainful employment prior to May 3, 2012.   

The Board may review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter.  See Anderson v. Shinseki, 22 Vet. App. 423 (2009).  The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).

In his July 2007 claim, the Veteran reported he was awarded SSA benefits effective September 2007.  The record reflects the Veteran last worked in March 2007 as a carpenter and that he ceased working due to his cervical spine disability and related service-connected radiculopathy.  Records from SSA indicate the Veteran has one year of college education.  

The evidence from the period prior to May 3, 2012 shows that the Veteran's cervical spine disability was not less disabling by way of interfering with employability.  In other words, the Veteran's cervical spine disability effectively rendered the Veteran unable to sustain gainful employment.

December 2006 treatment records from Dr. J.J. note the Veteran's cervical range of motion is globally diminished.  The Veteran reported pain was constantly 6 or 7 out of 10 and was worse with coughing, sneezing, bending and lifting as well as walking and lying down, but was somewhat better with sitting.  Dr. J.J. advised the Veteran "to consider vocational rehabilitation because I doubt that he will be durable as a carpenter with this long construct."  In a January 2007 statement, the Veteran reported that Dr. J.J. told him that he cannot do any more physical labor due to his cervical spine condition.  

The May 2012 VA examiner stated "[r]egarding sedentary work, the veteran is not able to sit for very long because his neck will actually become quite painful with prolonged sitting.  He has to get up and walk around if he sits for more than an hour."  The RO relied on this opinion in its June 2012 decision to grant a TDIU.  The Board notes that sharp cervical spine pain from sitting is a symptom that the Veteran reported for years prior to the May 2012 examination, and supports exclusion of sedentary work and an earlier effective date for the TDIU.

For example, in January 2012 the Veteran reported that he can't sit for long when he tries to socialize.  See SSA records from January 28, 2012.  Similarly, the Veteran has report such pain to treatment providers.  See May 4, 2009 VA treatment record.  Upon VA examination in March 2010 and August 2007, onset of sharp pain was noted from sitting more than 30 minutes and sitting respectively.

In light of the above, an effective date prior to May 3, 2012 is warranted.  The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  Section 5110(b)(2) provides an 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."  The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim.  If the increase occurred after the date of the claim, the effective date is the date of increase.  38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998).

Although the claim on appeal was filed in July 2007, the Board finds an effective date prior to July 2007 is warranted.  An effective date may go back up to a year prior to the filing of a claim if it factually ascertainable that the increase occurred within one year prior to the claim.

VA treatment records from February 7, 2006 note that the best position for the Veteran's pain is sitting with arm dangling.  As noted above, December 2006 treatment notes reflect the Veteran's pain was actually better upon sitting.  Furthermore, an August 2006 VA examination report reflects mild, nonradiating, cervical pain with decreased mobility, but otherwise mild impact on daily activities.  However, as also noted above, the August 2007 VA examination report reflects onset of pain from sitting and substantially more limitations in daily activities including preventing shopping, exercise, recreation and travelling.

The medical records between December 2006 and August 2007 do not reflect a worsening with regards to pain from sitting.  However, in a statement that was part of his July 2007 claim, the Veteran reported his doctor recommended additional surgery, and the record reflect he underwent two cervical fusion surgeries in 2008.  Furthermore, the Board notes that in connection with his claim for SSA benefits, the Veteran was interview by an SSA employee on April 11, 2007.  In an accompanying report, the employee noted observing the Veteran having difficulty with sitting.  In light of this report, the Board finds that it factually ascertainable that the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities as of March 2, 2007, the date sel3ected by SSA.  


ORDER

Entitlement to TDIU on a schedular basis is granted, effective April 23, 2012, subject to the laws and provisions governing the award of monetary benefits.

Entitlement to TDIU on an extra-schedular basis is granted, effective March 2, 2007, subject to the laws and provisions governing the award of monetary benefits.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs