Citation Nr: 18141325 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 09-15 030 DATE: October 10, 2018 ORDER The assignment of a combined rating of 90 percent in an October 2006 rating decision was proper; the appeal for accrued benefits purposes is denied. An effective date prior to April 5, 2006, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) for accrued benefits purposes is denied. FINDINGS OF FACT 1. In accordance with the Combined Ratings Table, the October 2006 rating decision properly assigned a 90 percent combined rating for the Veteran’s service-connected disabilities. 2. Following the issuance of a final rating decision in January 2005, the Veteran did not file a formal or informal claim for an increased rating for a service-connected disability or a TDIU prior to the receipt of his informal claim for a rating in excess of 20 percent for diabetes mellitus, type II, on April 5, 2006, and it is not factually ascertainable that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation within the year prior to the receipt of such claim. CONCLUSIONS OF LAW 1. The assignment of a combined rating of 90 percent in the October 2006 rating decision was proper. 38 U.S.C. § 5110; 38 C.F.R. § 4.25. 2. The criteria for an effective date prior to April 5, 2006, for the award of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to June 1972. He died in January 2008 and the appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2008 by a Department of Veterans Affairs (VA) Regional Office. In November 2010 and January 2014, the Board remanded a claim of entitlement to accrued benefits. In January 2015, the Board found the Veteran had pending claims at the time of his death and remanded those claims, which are listed on the title page of this decision, so the Agency of Original Jurisdiction (AOJ) could address the merits of such for accrued benefits purposes. In a June 2018 rating decision, the AOJ awarded an effective date of April 5, 2006, for the assignment of a combined rating of 90 percent and a TDIU. In a June 2018 supplemental statement of the case, the AOJ found the October 2006 assignment of a combined 90 percent rating was proper, and an effective date prior to April 5, 2006, for the award of a TDIU was not warranted. The case now returns for further appellate review. The Board observes that the appellant was previously represented by an attorney, Joseph A. Florio; however, in an August 2018 statement, she revoked his representation. Therefore, she is considered to be unrepresented in the current appeal. 1. Whether the assignment of a combined rating of 90 percent in an October 2006 rating decision was proper for accrued benefits purposes. An October 2006 rating decision, based on the award of service connection for a number of disabilities and the assignment of initial ratings, assigned a 90 percent combined rating for the Veteran’s service-connected disabilities, effective May 31, 2006. The Board observes that the Veteran did not enter a notice of disagreement as to the propriety of the assigned ratings for the service-connected disabilities adjudicated therein and, therefore, such matter is not before the Board. Thereafter, an August 2007 rating decision granted entitlement to a TDIU effective May 31, 2006. In June 2018, the AOJ granted an earlier effective date of April 5, 2006, for the assignment of a combined rating of 90 percent and a TDIU for accrued benefits purposes. The appellant and Veteran, prior to his death, contend that the AOJ improperly calculated his combined rating as 90 percent in the October 2006 rating decision. In this regard, they note that the ratings assigned to each disability added up to well over a 100 percent and, as such, it was improper for the AOJ to instead award a TDIU. As an initial matter, the Board observes that, regardless of the fact that a combined rating of 90 percent has been assigned as of April 5, 2006, the Veteran and, thereafter, the appellant, have been paid at the 100 percent rate based on the award of a TDIU as of the same date. Nonetheless, with regard to their specific contention, the Board finds that the assignment of a combined rating of 90 percent in the October 2006 rating decision was proper and, therefore, the appellant’s appeal as to such issue must be denied. Specifically, VA regulations provide that the individual percentages of each disability are not added to determine a veteran’s combined rating; rather, a Combined Ratings Table is utilized. In this regard, the Combined Ratings Table results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled. 38 U.S.C. § 5110; 38 C.F.R. § 4.25. Thus, applying the Combined Ratings Table to the Veteran’s service-connected disabilities as rated in the October 2006 rating decision, a 90 percent combined rating results. Consequently, the assignment of such was proper. Therefore, there is no doubt to be resolved and the appellant’s appeal must be denied. 2. Entitlement to an effective date for the award of a TDIU prior to April 5, 2006, for accrued benefits purposes. The appellant and Veteran, prior to his death, seek an effective date prior to April 5, 2006, for the award of a TDIU. Specifically, they argue that the effective date should be September 20, 2002, the date of receipt of the Veteran’s original service connection claims. A TDIU claim qualifies as a claim for increased disability compensation. The United States Court of Appeals for Veterans Claims (Court) determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Significantly, in Norris, supra, the Court held that, when the AOJ is considering a claim for an increased rating from a claimant whose schedular rating meets the minimum criteria of 38 C.F.R. § 4.16(a), and there is evidence of current service-connected unemployability in the record, evaluation of that rating increase must also include evaluation of a reasonably raised claim for a TDIU. The Federal Circuit has also held that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based on individual unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Similarly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. A request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. As pertinent to the instant matter, 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). A “report of examination or hospitalization” under § 3.157(b) should “indicate that [a] veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157(b) “implies that the medical record in question must describe the results of a specific, particular examination.” A letter may qualify if it, for instance, was “generated in connection with any particular VA medical examination” rather than, for example, a “claim for Social Security disability benefits that was pending at the time it was written.” Massie, 25 Vet. App. at 133. Other considerations include whether the letter relates “the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation,” rather than “present[ing] a very short summation of [the veteran’s general condition, as [the physician] had observed it over” time. Id. Turning to the requirements for establishing a TDIU, it is the recognized 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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 (a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. See 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, at 363. If a veteran does not meet the schedular criteria outlined above but he or she is unemployable by reason of his or her service-connected disabilities, rating boards should submit the claim to the Director, Compensation Service, for extra-schedular consideration. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board is required to obtain the Director’s decision before it may award an extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Preliminarily, the Board acknowledges the finality of any previous decision can be vitiated by a finding of clear and unmistakable (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates)). However, the Federal Circuit has held that a CUE motion cannot be filed by a survivor seeking accrued benefits if no CUE motion was pending at the time of the Veteran’s death. See Haines v. West, 154 F.3d 1298 (Fed. Cir. 1998); aff’d, Rusick v. Gibson, 760 F.3d 1342 (Fed. Cir. 2014). As a result, the appellant here cannot submit a motion to correct a previous rating decision based on CUE as no such claim was pending at the time of the Veteran’s death. The Board further finds that, following the issuance of a final rating decision in January 2005, the Veteran did not file a formal or informal claim for an increased rating for a service-connected disability or a TDIU prior to the receipt of his informal claim for a rating in excess of 20 percent for diabetes mellitus, type II, on April 5, 2006, and it is not factually ascertainable that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation within the year prior to the receipt of such claim. Consequently, an earlier effective date for the award of a TDIU for accrued benefits purposes is not warranted. In this regard, rating decisions issued in October 2003, September 2004, and January 2005 assigned various ratings for the Veteran’s service-connected disabilities. The Board observes that he did not enter a notice of disagreement as to the propriety of the assigned ratings for the service-connected disabilities adjudicated therein. Additionally, with respect to the most recent rating decision issued in January 2005, the Board finds that such is final. In this regard, by the time such rating decision was rendered, the AOJ had adjudicated all pending claims that had been raised formally or informally since the Veteran’s original claim for service connection was received on September 20, 2002. Furthermore, while the Veteran was notified of such decision in January 2005, he did not enter a notice of disagreement as to any matter explicitly or implicitly denied therein. Additionally, no new and material evidence was physically or constructively added to the record within a year of the issuance of such decision and no relevant service department records were subsequently received. Therefore, the January 2005 rating decision is final. 38 U.S.C. § 7105(c) (2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]. Thereafter, while the AOJ received notification that the Veteran was hospitalized for a day in November 2005 for hyperglycemia, such did not indicate that he was entitled to an increased rating for diabetes mellitus, type II, or rendered unemployable as a result of such service-connected disability. In fact, even in consideration of such hospitalization, the AOJ subsequently denied an increased rating for diabetes mellitus, type II, in the October 2006 rating decision. Consequently, such may not be considered an informal claim for a TDIU pursuant to 38 C.F.R. § 3.157(b)(1); Massie, supra. Thereafter, the AOJ received the Veteran’s VA Form 21-4142 (Authorization and Consent to Release Information to VA) in April 5, 2006, which was construed as an increased rating claim for his service-connected diabetes mellitus, type II. In this regard, the AOJ based such determination on the inclusion of a statement from the Veteran’s representative that indicated such form was in support of a pending claim (although it was erroneously identified as a claim for service connection for diabetes mellitus, type II). As the issue of entitlement to a TDIU was raised in connection with such increased rating claim, the AOJ assigned April 5, 2006, as the effective date for a TDIU based on the date of receipt of such documents. Rice, supra. Furthermore, the Board finds that it was not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation within the year prior to the receipt of the April 5, 2006, claim. In this regard, while the Veteran variously reported that he last worked in April 2005 and May 2005 in VA Forms 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) received in November 2006 and April 2007, and worked part-time as a substitute teacher at various points, the record reflects that he last worked full-time as a teacher on May 31, 2004, as confirmed by his previous employer in August 2007. Furthermore, as noted by the AOJ in the August 2007 rating decision, the Veteran was found to be unemployable due to his service-connected peripheral vascular disease of the bilateral lower extremities, bipolar disorder, diabetes mellitus, tinnitus, and peripheral neuropathy of the bilateral upper and lower extremities. However, prior to April 5, 2006, the Veteran was only service-connected for bipolar disorder; diabetes mellitus with erectile dysfunction, retinopathy and cataracts, and peripheral vascular disease of the bilateral lower extremities; tinnitus; and bilateral hearing loss, and the evidence fails to show that such disabilities met the schedular threshold for consideration of a TDIU or rendered the Veteran unable to secure or follow a substantially gainful occupation such that referral to the Director of Compensation Service for extra-schedular consideration is warranted. The Board parenthetically notes that service connection was also in effect for hypertension during such time period, but such was severed and a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o). In this regard, the record reflects that, prior to April 5, 2006, the Veteran’s bipolar disorder resulted in, at most, moderate symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See August 2003 VA examination; November 2004 VA examination. Furthermore, at the July 2003 VA examination, it was noted that the Veteran’s diabetes mellitus with erectile dysfunction, retinopathy and cataracts, and peripheral vascular disease of the bilateral lower extremities did not result in any time lost from work. Finally, a July 2003 VA examination shows that the Veteran’s bilateral hearing loss was noted to be mild to moderate in nature, and his tinnitus was described as intermittent (5 to 10 minutes a day) and moderate. Consequently, the Board finds that it is not factually ascertainable that the Veteran’s service-connected disabilities, either singularly or jointly, rendered him unable to secure or follow a substantially gainful occupation within the year prior to the receipt of his April 5, 2006, claim. Therefore, an effective date prior to April 5, 2006, for the award of a TDIU for accrued benefits purposes is not warranted. Therefore, there is no doubt to be resolved and the appellant’s appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel