Citation Nr: 18148682 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-39 982 DATE: November 8, 2018 ORDER An earlier effective date of November 1, 1997, for the award of a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to TDIU arose from a July 1998 claim for disability compensation and benefits, and it is factually ascertainable that the Veteran was first unemployable because of his service-connected disabilities on November 1, 1997. 2. The Veteran was granted service connection with a compensable rating for a lumbosacral spine disability, a right foot disability, and a left elbow disability with an effective date of November 1, 1997. 3. From November 1, 1997, the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected lumbosacral spine disability, right foot disability, and scar on the left elbow disability. CONCLUSION OF LAW The criteria for assignment of an effective date of November 1, 1997, and no earlier, for the grant of TDIU have been met. 38 U.S.C. §§ 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from November 1974 to December 1979, and in the United States Air Force Air National Guard from June 1982 to October 1997. The Veteran’s claim comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. This case involves a very long and potentially confusing procedural history. For this reason, additional procedural explanation is required to understand the earlier effective date for the grant of TDIU that is currently on appeal. The Veteran filed a formal claim for service connection for, inter alia, a lumbosacral spine disability, a right foot disability, and a left elbow disability in July 1998, which was within one year of his separation from the United States Air Force Air National Guard. The RO granted service connection with compensable disability ratings for the aforementioned disabilities with an effective date of November 1, 1997. See February 1999 rating decision (left elbow disability at 10 percent disabling); August 2004 rating decision (lumbosacral spine disability at 10 percent disabling); November 2004 rating decision (lumbosacral spine disability increased to 30 percent disabling, and right foot disability at 10 percent disabling). In April 1999, the Veteran filed a VA Form 9, which is construed by the Board as a timely notice of disagreement, regarding the issues of service connection and an initial rating assigned, and raised the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (explaining that a request for TDIU, whether raised expressly by the veteran or reasonably by the record, is part of a rating issue). In the January 2004 rating decision, the RO denied entitlement to TDIU. The Veteran timely filed a notice of disagreement in June 2004; thereafter, the RO issued an August 2004 statement of the case. A timely VA Form 9 was filed by the Veteran in October 2004, and the RO certified the Veteran’s appeal to the Board, through an October 2006 VA Form 8. In the February 2009 Board decision, the TDIU claim was remanded to the RO to issue proper VCAA notice regarding TDIU and obtain a medical examination before re-adjudicating the Veteran’s claim. The RO issued the appropriate VCAA notice in April 2009, and sought the medical opinion regarding TDIU in June 2011. The RO denied entitlement to TDIU in a February 2014 supplemental statement of the case and a February 2014 rating decision. The Veteran’s claim was then returned to the Board. In a July 2014 Board decision, the Board found the medical examination the RO relied on for denying the claim was inadequate for adjudication purposes, and then remanded the claim back to the RO. The RO promptly obtained a second medical opinion in October 2014, then issued a December 2014 supplemental statement of the case denying, again, entitlement to TDIU. The RO subsequently issued a May 2015 rating decision granting entitlement to an award of TDIU. The RO determined the assigned effective date as October 27, 2014, because “[this date is] the same date your combined evaluation for all your service-connected disabilities was increased to 90 percent disabling. The effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred.” The Veteran did not submit a notice of disagreement until June 3, 2016. Although the rating decision was issued May 20, 2015, notification of the rating decision was not sent until June 12, 2015; thereby making the June 2016 notice of disagreement timely. The RO issued a June 2016 statement of the case, and the Veteran filed VA Form 9 in August 2016. Thereafter, this appeal was certified to the Board in an August 2016 VA Form 8. 1. Earlier Effective Date The Veteran seeks entitlement to an earlier effective date for the award of TDIU and contends that the RO inaccurately calculated the effective date when it granted the Veteran’s award of TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more; and if there are two or more disabilities, there shall be at least one disability 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). For purposes of effective date rules, the issue of entitlement to a TDIU may be considered as part of a claim for underlying benefits (i.e., the service connection claim) or may be considered part of an increased compensation claim (i.e., in conjunction with an increased evaluation claim or as a freestanding claim to obtain an increased evaluation based on unemployability). See Rice, 22 Vet. App. at 453-54; see also Dalton, 21 Vet. App. at 32-34. The general rule, with respect to the effective date of an award of increased compensation, is that the effective date of award “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The law provides an exception to this general rule governing claims for increased ratings. 38 U.S.C. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date when it is ascertainable that the increase occurred, provided that the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As noted above, the claim on appeal for entitlement to an earlier effective date for the award of TDIU stems from an initial increased rating claim that dated back to November 1, 1997. Turning to the evidence of record, the Board notes that, since November 1, 1997, the Veteran has been service-connected for, inter alia, a lumbosacral spine disability at 30 percent disabling, a right foot disability at 10 percent disabling, and a scar on the left elbow associated with olecranon bursitis at 10 percent disabling. As these disabilities all affect a single body system, namely the musculoskeletal system, they are also eligible to be combined as one disability to meet the one disability with a 40 percent schedular requirement. Further, the Veteran’s combined evaluation was 70 percent from November 1, 1997. Thus, the Board finds that the Veteran has met the threshold schedular criteria from November 1, 1997. Although the Veteran met the threshold requirement for a schedular TDIU during the period on appeal, the Board must consider whether his service-connected disabilities precluded him from securing and following substantially gainful employment prior to October 27, 2014. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Returning to the evidence of record, the Board notes the October 2014 VA examiner’s opinion that the Veteran’s service-connected disabilities are not likely to prevent him from doing light, sedentary work-related jobs, which was based on a review of various VA examinations. The Board acknowledges the Social Security Administration (SSA) October 2000 decision granting the Veteran entitlement to disability insurance benefits from September 12, 1997, which was received by VA in March 2002. While SSA determinations are not binding on the Board, they are relevant and the records relied upon to make SSA determinations are probative evidence, specifically in consideration of the Veteran’s claim for an earlier effective date for the award of TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). Here, the Board notes that the December 2002 SSA decision focused specifically on the Veteran’s service-connected lumbosacral spine disability, right foot disability, and scar on the left elbow associated with olecranon bursitis. SSA found the Veteran disabled since September 12, 1997. Therefore, the Board finds the SSA records probative and assigns great weight to them. The Board also recognizes the Veteran has submitted multiple lay statements indicating the last date he worked was in 1997, and that his VA service-connected disabilities prevent him from working. See, e.g., November 2002 VA Form 9; September 1999 Reconsideration Disability Report (discussing difficulties walking without assistance and use of the Veteran’s left arm); June 1999 SSA Fatigue Questionnaire; April 1999 Notice of Disagreement. Resolving reasonable doubt in favor of the Veteran, unemployability for TDIU purposes is established since the Veteran’s November 1997 retirement from active duty. The evidence of record does not show that the Veteran has or could have obtained or maintained substantially gainful activity in a sedentary occupation. The March 2015 private medical opinion explained that even if the Veteran were able to obtain sedentary employment, it would be highly unlikely that he could maintain employment due to, inter alia, chronic taking of narcotic medication for his service-connected lumbosacral spine disability. Based on the above discussion, the Board finds that the Veteran’s service-connected disabilities have precluded him from securing and following substantially gainful employment prior to October 27, 2014. As the current appeal relates back to the original claim for disability compensation and benefits in July 1998, which was also less than one year following separation from the military, the Board finds the new effective date, November 1, 1997, is the earliest date which is factually ascertainable that the increase in disability is shown to have occurred. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Finally, VA may not grant an effective date for entitlement to disability compensation and benefits prior to the date of separation from service. 38 U.S.C. § 5110(a), (b) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). As noted above, the Veteran’s last date of service is October 31, 1997; therefore, the earliest effective date possible is November 1, 1997. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk