Citation Nr: 18155082 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-46 554 DATE: December 4, 2018 ORDER Entitlement to an earlier effective date of November 18, 2011, for service-connected coronary artery disease (CAD) with angina, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. An April 2015 rating decision awarded service connection for CAD with angina, and assigned an effective date of September 25, 2014. 2. The evidence reflects that the Veteran initially filed a claim for service connection for CAD on November 18, 2011. 3. The RO denied service connection for CAD in a September 2012 rating decision. 4. The Veteran submitted new and material evidence within a year of the September 2012 rating decision and the RO did not readjudicate the claim. 5. The Veteran’s service-connected disabilities preclude the ability to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of November 18, 2011, but no earlier, for the award of service connection for CAD with angina, have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 2. The criteria for a TDIU are met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from February 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 and April 2014 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, denied entitlement to a TDIU and granted service connection for CAD with angina and assigned an effective date of September 25, 2014. The Veteran filed a timely notice of disagreement (NOD) as to both claims, timely appealing the effective date for CAD assigned. Subsequently, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In November 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. Although a transcript of the hearing has not yet been associate with the claims file, one is not necessary for a decision on the claim. 1. Entitlement to earlier effective date earlier than September 25, 2014, for service-connected CAD with angina Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110 (a). If the claim for compensation was received within one year of separation from service, the effective date is the day following separation from service. See 38 U.S.C. § 5110 (b)(1). Otherwise, the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). Although the regulations relating to what constitutes a claim were recently amended, effective March 24, 2015, given that the claim in this case was filed prior to that date, the former regulations are applicable. Under those regulations, a “claim” was 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, 34-35 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155 (a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155 (a). Finally, 38 C.F.R. § 3.156(b) provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (prior to March 24, 2015) (“pending claim” is “[a]n application, formal or informal, which has not been finally adjudicated”); see also Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) (“[A] claim remains pending–even for years–if the Secretary fails to act on a claim before him”). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). In April 2015, the RO granted service connection for CAD with angina and assigned an effective date of September 25, 2014, the date the most recent claim for service connection for this disability was filed. Prior to that date, on November 18, 2011, the Veteran filed a claim for entitlement to service connection for CAD. The RO denied the claim in a September 2012 rating decision. The basis for the denial was that the Veteran’s diagnosis of aortic stenosis did not fall within the definition of ischemic heart disease, a disease for which he would be entitled to service connection on a presumptive basis because of his Vietnam service and consequent presumed Agent Orange exposure. 38 U.S.C. § 1116(a)(1), (f); 38 C.F.R. § 3.307(a)(6)(iii), 38 C.F.R. § 3.309(e). The claims file contains a January 2013 letter from the Veteran’s then representative indicating that multiple enclosure were being attached, including medical evidence from Duke Surgery, Carolina East, Down East Medical Associates, and a Worker’s Compensation Medical Status Questionnaire. The referenced documents are in the claims file as a single document with a receipt date of June 13, 2013 in the Board’s Veterans Benefits Management System (VBMS) electronic claims file. These documents include evidence that the Veteran was diagnosed with coronary artery disease, which falls within the definition of ischemic heart disease. Thus, the evidence received within one year of the September 2012 denial of service connection for CAD was new and material because it related to the basis for the denial and raised a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, the RO did not readjudicate the claim as required by 38 C.F.R. § 3.156(b). Consequently, the claim for entitlement to service connection for CAD remained pending. As the November 18, 2011 claim remained pending, it was this claim that the RO granted in its April 2015 rating decision. As November 18, 2011 is the appropriate date of claim, the only remaining question with regard to assignment of the effective date is whether the date of claim was earlier than the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). With respect to the phrase date entitlement arose, “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.” Lalonde v. West, 12 Vet. App. 377, 382 (1999). Moreover, the Board must determine when a claimant’s disability manifested itself under all the “facts found” and “the date on which the evidence is submitted is irrelevant.” McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The record contains a December 2011 VA-authorized examination report indicating that the Veteran had a grade I high-pitched systolic murmur, indicative of aortic stenosis. The physician who conducted the examination reported that the Veteran has had this diagnosis since 1978 and opined that the Veteran’s heart condition qualifies within the generally accepted medical definition of ischemic heart disease. This reflects that entitlement arose prior to the date of the November 18, 2011 claim on appeal. Accordingly, the latter of the two dates, November 18, 2011, is the appropriate effective date of the award of service connection for CAD with angina. Although the Veteran, through his attorney, has argued that the effective date of service-connection for CAD should be September 28, 2011, a review of the claims file reflects that on September 28, 2011, the Veteran filed an application for compensation for hearing loss, tinnitus, diabetes mellitus, and a skin condition. On November 18, 2011, in a statement in support of the claim, he asked to expand his claim to include CAD. Thus, the date of the claim is November 18, 2011. For the foregoing reasons, the appropriate effective date of the award in this case is November 18, 2011, the date the Veteran’s initial claim for service connection was received. A preponderance of the evidence is against a finding that an effective date earlier than November 18, 2011, is warranted and the benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). Preliminarily, the Veteran is currently service-connected for CAD and angina, rated as 100 percent disabling; posttraumatic stress disorder, rated as 50 percent disabling; adjustment disorder with mixed reactions, rated as 50 percent disabling; diabetes mellitus type II, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling, left lower extremity peripheral neuropathy associated with diabetes mellitus type II, rated as 10 percent disabling; right lower extremity peripheral neuropathy associated with diabetes mellitus type II, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensable; and hypertension rated as noncompensable. Therefore, the Veteran meets the minimum schedular requirements for TDIU benefits. 38 C.F.R. § 4.16(a). In addition, the Board has granted an earlier effective date for the grant of service connection for CAD and the RO will assign a rating for the period prior to September 25, 2014 when it implements this grant. Thus, there is currently a period of the appeal period for which the Veteran is not in receipt of a 100 percent rating and in any event a 100 percent rating does not necessarily render moot the issue of entitlement to a TDIU. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran contends that his service-connected disabilities preclude him from securing or following substantially gainful employment. The evidence of record reflects that the Veteran was last employed in October 2010. In a September 2010 letter from the Veteran’s former employer, the president of the company described the Veteran’s duties to include scheduling, coordinating venders and subcontractors on and off site, site inspections which include climbing steps/stairs and ladders, and construction framing. The president reported that due to the Veteran’s physical inability perform these onsite tasks and execute as hired, they gave notice that the Veteran’s employment would no longer be available after September 30, 2010. Medical treatment records form December 2011 reflect that the Veteran reported that he was advised to stop climbing ladders as part of his job as a project manager for a construction company. He was, therefore, terminated from his job in October 2010, on medical grounds, as he had difficulty coping with walking on scaffolding and high roofs and using steps that do not have rails. A December 2011 VA examination report reflects that the examiner found that the Veteran’s diabetes mellitus impacted his ability to work due to weakness, shortness of breath on exertion, and limitation climbing stairs. Additionally, he reported that the Veteran’s heart condition impacted his ability to work due to the inability to handle stress, climbing ladders, and the Veteran’s dizzy spells. A June 2012 Disability Benefits Questionnaire (DBQ) reflects that the Veteran has occupational and social impairment with reduced reliability and productivity with symptoms that include depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran’s January 2013 Application for Increased Compensation based on unemployability reflects that the Veteran last worked in October 2010 as a project manager for a construction company. He has a two-year college degree and has not had training in any other areas outside of his previous employment. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran’s record indicates he has some college education. The Veteran reported that his service-connected disabilities, as a whole, preclude him from gainful employment. These statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Veteran has not been employed since approximately 2010. Although the Veteran’s two years of college could qualify him for some types of sedentary work, the evidence shows that the symptomatology of his service-connected disabilities, mainly CAD and PTSD, hindered him from gaining employment. Furthermore, the Veteran is not trained in any type of employment that he could perform consistent with the impairment caused by his current service-connected disabilities, as indicated by his limited work history. Most significantly, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib, 733 F.3d 1350 at 1354. Given the Veteran’s relatively limited education and occupational history and the significant limitations caused by the combination of his physical disabilities, the Board finds that he is unable to secure and follow a substantially gainful occupation due to his service connected disabilities. Entitlement to a TDIU is therefore warranted. As noted above, the Veteran is in receipt of a 100 percent rating for his CAD for a portion of the appeal period and the RO has yet to implement the Board’s grant of an earlier effective date for the grant of service connection for this disability, with a consequent assignment of a rating for the period prior to June 25, 2014. As noted, the issue of entitlement to a TDIU is moot in some circumstances in which a 100 percent rating is in effect and is not moot in other circumstances. Therefore, the Board will not assign an effective date for the award of a TDIU and will allow the AOJ to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an [AOJ] decision, such an argument is unavailing unless [a notice of disagreement] is then of record as to the downstream issue of an effective date for the assignment of that rating”). See also Sprinkle v. Shinseki, 733 F.3d 1180, 1183–84 (Fed. Cir. 2013) (veterans’ claims are initially developed and adjudicated by the RO and reviewed on appeal by the Board, and that, “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel