Citation Nr: 18142132 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-21 393 DATE: October 12, 2018 ORDER The appeal as to the claim of entitlement to an effective date earlier than December 3, 2013, for the grant of entitlement to a total disability rating based upon individual unemployability (TDIU), is granted. The appeal as to the claim of entitlement to an effective date earlier than December 3, 2013, for the grant of service connection for radiculopathy, left lower extremity, is denied. The appeal as to the claim of entitlement to an effective date earlier than December 3, 2013, for the grant of service connection for radiculopathy, right lower extremity, is denied. The appeal as to the claim of entitlement to an effective date earlier than July 28, 2016, for the grant of service connection for migraine headache disorder, is denied. FINDINGS OF FACT 1. Since November 13, 2008, the Veteran’s service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. 2. The earliest effective date entitlement arose to service connection for radiculopathy of the left lower extremity was on December 3, 2013. 3. The earliest effective date entitlement arose to service connection for radiculopathy of the right lower extremity was on December 3, 2013. 4. The earliest effective date entitlement arose to service connection for migraine headache disorder was on September 26, 2016. CONCLUSIONS OF LAW 1. Since November 13, 2008, the criteria for entitlement to an earlier effective date for the award of a TDIU have been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o) (2018). 2. The criteria for an earlier effective date for the award of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o) (2018). 3. The criteria for an earlier effective date for the award of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o) (2018). 4. The criteria for an earlier effective date for the award of service connection for migraine headache disorder have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1979 to June 1983. The Veteran’s service was under honorable conditions. These matters are on appeal from May 2014, October 2014, and November 2016 rating decisions. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or 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 (2018). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a) (2012). 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) (2018); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an 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) (2018); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155 (a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). 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. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). 38 C.F.R. § 3.155 (c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 1. Entitlement to an effective date earlier than December 3, 2013, for the grant of entitlement to a TDIU. The Veteran was awarded TDIU with an effective date of December 3, 2013. His representative seeks an earlier effective date for the TDIU award. The Board is inclined to agree with the request. As above, the statutory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or 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. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2018). 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. See 38 C.F.R. § 4.16 (a) (2018); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Where, as here, there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, the Veteran was in receipt of a 70 percent combined total rating as of November 13, 2008: based on combination of a 40 percent rating for Traumatic Brain Injury (TBI), 40 percent rating for lumbar spine disability, a 10 percent rating for right knee disability, a 10 percent rating for peptic ulcer disability, a 10 percent rating for tinnitus disability, and a noncompensable rating for bilateral hearing loss disability. Thus, the schedular criteria for TDIU are met. Medical and lay evidence support the Veteran’s contention that he was unable to obtain or maintain substantially gainful employment since November 13, 2008. He was last employed in April 1999. Since filing his claim, the record contains reports of inability to concentrate, memory loss, chronic low back pain, right knee pain, stomach problems, and dizziness and difficulty hearing. Moreover, in a May 2011 addendum opinion, the June 2010 examiner found that after careful consideration of the lay and medical evidence, he was less inclined to think that the Veteran was capable of pursuing gainful employment. The examiner indicated that the Veteran exhibited abnormal behavior, also noted by the Veteran’s spouse, due to his service-connected TBI. The examiner concluded that he could not imagine that any employer would be willing to hire the Veteran for a job due to the many risks that the Veteran would add to their safety profile, and therefore the Veteran is “definitely unemployable.” Similarly, in an August 2014 vocational evaluation report, M.L. opined that the Veteran was unable to maintain substantially gainful employment since 2003. In sum, the Board finds that TDIU is warranted as of November 13, 2008. The evidence demonstrates that the combined effects of the Veteran’s disabilities, particularly his TBI, lumbar spine, and right knee, significantly impact his ability to adapt to a work-like setting, ability to work in a physically demanding occupation, and the ability to work for long periods of time. For these reasons, the Board finds it unlikely that the Veteran was able to obtain or maintain substantially gainful employment since November 13, 2008. 2. Entitlement to an effective date earlier than December 3, 2013, for the grant of service connection for radiculopathy, left lower extremity. See argument Below at 3 3. Entitlement to an effective date earlier than December 3, 2013, for the grant of service connection for radiculopathy, right lower extremity. The Veteran contends that the effective date of his assigned left and right lower extremity radiculopathy, respectively, should be prior to December 3, 2013; specifically, January 6, 1999, the date of receipt of the claim for entitlement to service connection for a low back disability. This position is without merit. As an initial matter, the Veteran filed a claim on January 6, 1999, for, in relevant part, a low back disability. The Veteran never filed a claim for left and right lower extremity radiculopathy. While the law provides that VA medical records are constructively of record in VA claims, Bell v. Derwinski, 2 Vet. App. 611 (1992), VA adjudicators cannot troll through medical records searching for possible eligibility for service connection claims. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006) (explaining that medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for compensation under 38 C.F.R. § 3.155 (a), "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition). Rather, VA adjudicators review claims that are filed. More importantly, there was insufficient evidence prior to December 3, 2013, from which to support a claim for left and right lower extremity radiculopathy. While the Veteran reported low back pain during VA outpatient treatment in September 1988, May 1989, July 2000, he did not report any pain, numbness or other symptomatology radiating into his legs. Indeed, the Veteran denied any pain radiating into his legs during the November 2001 QTC fee-based examination, and again during the September 2004 VA examination. Likewise, during VA outpatient treatment in October 2003, December 2003, July 2004, August 2004, and April 2005, the Veteran did not report any pain radiating into his legs. The Board acknowledges the argument from the Veteran’s representative, that VA treatment records dated in March 2002 and January 2003 show complaints of pain and numbness; however, the contemporaneous examination reports do not demonstrate objective findings of left or right lower extremity radiculopathy. Consequently, the December 2013 VA examiner ultimately diagnosed the Veteran with mild, left and right lower extremity radiculopathy. On that basis, the Veteran was assigned separate ratings for left and right lower extremity radiculopathy. In sum, the facts show that the earliest date entitlement arose for service connection for left and right lower extremity radiculopathy was on December 3, 2013. 4. Entitlement to an effective earlier than July 28, 2016, for the grant of service connection for migraine headache disorder. The Veteran contends that the effective date of his assigned migraine headache disability, should be prior to July 28, 2016; specifically, January 26, 2009, the date of a QTC fee-based examination that shows the Veteran reported complaints of headaches. This position is without merit. As an initial matter, the Veteran filed a claim on July 28, 2016, for, in relevant part, an increased rating for his service-connected TBI. The Veteran never filed a claim for a migraine headache disorder. See Id. More importantly, there was insufficient evidence prior to July 28, 2016, from which to support a claim for migraine headache disorder. While the Veteran reported headaches during contemporaneous VA outpatient treatment and during the January 2009 QTC fee-based examination, these complaints were associated with multiple nonservice connected disabilities, to include seizure disorder, cervical spine disorder, and defective vision. Moreover, the January 2009 QTC fee-based examiner found the Veteran’s previous diagnosis of post-concussion syndrome with headaches had progressed to a TBI; however, he did not find any separate residuals of the service-connected TBI. Indeed, the Veteran did not report any headaches during the June 2010 QTC fee-based TBI examination. However, the September 2016 QTC fee-based examiner ultimately diagnosed a migraine headache disorder as a residual of the service-connected TBI. On that basis, the Veteran was assigned a separate rating for migraine headaches. In sum, the facts show that the earliest date entitlement arose for service connection for migraine headache disability was on September 26, 2016. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Therefore, the claim for entitlement to an earlier effective date for the award of service connection for left lower extremity radiculopathy, right lower extremity radiculopathy, and migraine headache disorder, must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel