Citation Nr: 21013377 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-35 632A DATE: March 9, 2021 ORDER Entitlement to an effective date earlier than September 17, 2012 for the grant of a total disability rating based on unemployability (TDIU) is denied. FINDING OF FACT There is no evidence that the Veteran filed a formal or informal claim for TDIU benefits prior to September 17, 2012; such a claim was not reasonably raised by the record prior to that date; and it was not factually ascertainable from August 2010 to the September 17, 2012 TDIU claim that the Veteran was unable to secure or follow substantially gainful employment due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to effective date earlier than September 17, 2012 for the grant of entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.156(b), 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) which granted a TDIU rating effective September 17, 2012. A May 2019 Board decision denied an effective date prior to September 17, 2012 and the Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court). In October 2020, pursuant to a Joint Motion for Remand (JMR) the Court vacated the May 2019 Board decision and remanded the case for readjudication in compliance with the terms of the JMR. Entitlement to an effective date earlier than September 17, 2012 for the grant of a total disability rating based on unemployability In the August 2014 VA form 21-0958, Notice of Disagreement (NOD), the Veteran argued the proper effective date for the award of TDIU benefits should have been December 10, 2008. In written argument accompanying his September 2016 VA form 9, Substantive Appeal, the Veteran argued the proper effective date for the award of TDIU benefits should have been May 11, 2010. However, quoting Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) the JMR stated that: “When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. And, when it is raised during the one-year appeal period following a decision on the claim, VA is required to consider the potential applicability of 38 C.F.R. § 3.156(b).” In this regard, 38 C.F.R. § 3.156(b) provides as applicable here and in relevant part that: Pending legacy claims not under the modernized review system. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed [] will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The JMR concluded that the Board had: failed to consider whether Appellant’s submissions were new and material evidence under 38 C.F.R. § 3.156(b), and whether TDIU part and parcel of the underlying claims adjudicated by the [RO]. Therefore, remand is warranted for the Board to address whether Appellant’s submissions constituted new and material evidence under 38 C.F.R. § 3.156(b) and to properly determine whether an earlier effective date is warranted in this case. In identifying the new “submissions” the JMR stated that: following the August 2010 rating decision [] Appellant submitted a supplemental claim in December 2010 [] and additional evidence and argument, to include VA treatment records, in January 2011. [] And within one year of the January 2012 rating decision [] Appellant submitted, among other things, the request for TDIU now in question. The essence of the JMR was that the Board was to determine whether evidence or claims received within one year of August 2010 and January 2012 rating decisions fell within the parameters of 38 C.F.R. § 3.156(b) with respect to entitlement to a TDIU rating. However, the Board must note that there was no final adjudicatory action taken in January 2012. Rather, a January 2012 rating noted that the Veteran had filed a claim for increased ratings on December 6, 2010 [VA Form 21-526b, Supplemental Claim for Compensation in which he only reference a claim for increased rating for “Diabetes”], but merely proposed to reduce a 30% rating for diabetic dermatitis to a noncompensable rating; proposed to reduce a 10% rating for peripheral neuropathy of the left lower extremity to a noncompensable rating; and proposed to reduce a 10% rating for peripheral neuropathy of the right lower extremity to a noncompensable rating. No actual, versus proposed, final adjudicatory action was taken. And, following testimony at a June 2012 RO hearing, a July 2012 rating decision effectuated those proposed reductions, effective October 1, 2012, which is after the effective date for the TDIU rating. Thus, the Board will review the evidence received during the one year after the August 2010 rating decision up to the current TDIU effective date of September 17, 2012. See Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) (citing Forcier v. Nicholson, 19 Vet. App. 414, 426 (2006) and holding that "when an attorney agrees to a joint motion for remand [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion."). In this case, no additional issues or argument have been raised as to an earlier effective date for the TDIU rating. Factual Background As a predicate, the Board notes that received on May 14, 2010 was VA Form 21-4138, Statement in Support of Claim, in which the Veteran requested increased ratings for diabetes mellitus and for diabetic peripheral neuropathy of each upper extremity and diabetic dermatitis. VA examinations in July 2010 included a general medical examination which yielded diagnoses of active diabetes mellitus, type II, requiring oral medication; diabetic dermatitis; diabetic nephropathy; hypertension not aggravated by diabetes; impotence and erectile dysfunction due to diabetes; and diabetic neuropathy of the lower extremities. There was no effect on his usual occupation or daily activities. Also, a chest X-ray revealed chronic obstructive pulmonary disease (COPD). An ophthalmology examination revealed bilateral cataracts as likely as not due to diabetes. An August 2010 letter from Dr. R. A. to another physician shows that the Veteran was evaluated for erectile dysfunction, for which he was prescribed Cialis, and he was advised to consider a vacuum pump. The August 2010 rating decision granted service connection for diabetic nephropathy with hypertension; peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity; and increased a 10% rating for diabetic dermatitis to 30%; and confirmed and continued a 20% rating for bilateral cataracts, a 10% rating for peripheral neuropathy of the left upper extremity and a 10% rating for peripheral neuropathy of the right upper extremity; and granted an effective date for special monthly compensation (SMC) based on loss of use (LOU) of a creative organ as of December 10, 2008. On December 6, 2010, the Veteran filed VA Form 21-526b, Supplemental Claim for Compensation, requesting an increased rating for “Diabetes.” Received in January 2011 were VA outpatient treatment (VAOPT) records of November and December 2010 and these reflect continued evaluation and treatment for diabetes and its complications. On November 22, 2010 it was reported that the Veteran had retired from working at “GM” plant in Flint and had had multiple jobs but had moved to in the past 2 years to be near wife's family. Received in February 2011 were private clinical records of the Atlanta Nephrology Referral Center from August to December 2010. In August 2010 he was evaluated for erectile dysfunction. In December 2010 he was evaluated for diabetes and “CKD” (chronic kidney disease) and advised that control of his blood pressure and diabetes was necessary to limit progression of his “CKD.” Received on February 1, 2011, was VA Form 21-4138, Statement in Support of Claim, in which the Veteran reported that his blood sugar levels had increased to the point that his primary care provider had transferred him to a diabetic clinic which had placed him on Metformin but he had to stop that medication due to diarrhea. A physician had suggested the use of insulin, but this approach was still pending. Also, a urologist had suggested a penile implant. Thus, the Veteran believed his diabetic conditions had worsened. Received on February 16, 2011 were private medical records of the Georgia Medical Associates. These include laboratory reports in 2010 and 2011, as well as an October 5, 2010, report of a yearly physical evaluation in which the Veteran described his exercise regimen as “moderate.” In December 2010 he complained of intermittent bilateral leg pain which was worse with walking or climbing stairs. Private clinical records of the Atlanta Nephrology Referral Center received on September 23, 2011, including multiple laboratory reports and a report of an August 25, 2011 office visit. He was again advised that control of his blood pressure and diabetes was necessary to limit progression of his “CKD.” On official ophthalmology examination of October 11, 2011, the Veteran complained of blurred vision and an examination revealed advanced bilateral cataracts which had progressed and was as likely as not due to diabetes. The Veteran was afforded additional official VA examinations October 11, 2011. The report of these examinations reveals that he had been prescribed oral medication and insulin, and he had anal pruritus, cataracts, diabetic neuropathy, and diabetic dermatitis. He had been prescribed oral medication and insulin but had not been prescribed a restricted diet. He reported not having had any episodes of his blood sugar being so high that it required hospitalization (diabetic ketoacidosis). He reported no episodes of hypoglycemia, weight loss, weight gain, or progressive loss of strength. His restrictions as to activities consisted of limiting his walking due to fatigue and pain. After a physical examination the diagnoses were diabetes mellitus, type II; diabetic dermatitis; peripheral neuropathy of each upper extremity; hypertension; and erectile dysfunction. The examiner reported that the conditions did not affect the Veteran’s usual occupation and the effect of the conditions on daily activities was that he had difficulty performing yard work and strenuous activities. An October 11, 2011, Reproductive System Disability Benefits Questionnaire (DBQ) shows that after an examination it was found that the Veteran erectile dysfunction did not impact his ability to work. A report from Georgia Urology of a February 14, 2012 office visit shows that the Veteran was evaluated for progressive worsening of his erectile dysfunction. An April 24, 2012, letter from the Social Security Administration (SSA) to the Veteran reflects that it was verified that he became disabled under SSA rules as of January 1, 2009, and entitlement began in June 2010. Received on March 5, 2012 was a February 2, 2012, VA physician’s statement that the Veteran’s diabetes, which was accompanied by neuropathy, required insulin and a restricted diet, or; oral hypoglycemic agents and restricted diet. Following the January 2012 rating which proposed to reduce the 30% rating for diabetic dermatitis, the 10% rating for peripheral neuropathy of the left lower extremity, and 10% rating for peripheral neuropathy of the right lower extremity, the Veteran testified at a June 12, 2012, RO hearing. The Veteran testified that he took oral hypoglycemic medication and insulin, and continued to have diabetic dermatitis and diabetic neuropathy. Also, he was informed that for a 40% rating for diabetes there had to be evidence of regulation of his activities (under 38 C.F.R. § 4.120, Diagnostic Code 7913). Received on July 25, 2012 was a VA physician’s statement dated July 18, 2012, that the Veteran’s that his diabetes mellitus required insulin and restricted diet, or oral hypoglycemic agent and restricted diet. Handwritten on that statement is a notation that the Veteran had mild to moderate neuropathy of his feet and that a cardiac work-up was pending. “Therefore, he is not recommended to exercise until cleared by VA cardiology clinic.” Received on August 8, 2012 was a record of an August 3, 2012, evaluation from Dunwoody Dermatology reflecting that the Veteran was prescribed a lotion for skin problems. A September 17, 2012, Report of Contact, shows that the Veteran made a phone call to the VARO and wished to file a claim for “unemployability” and that VA Form 21-8940, was mailed to him that same day. The VA Form 21-8940, Application for Increased Compensation Based on Unemployability, provides that the Veteran’s disabilities affected his full-time employment, he became too disabled to work, and last worked full-time on June 27, 2008, as a factory worker for General Motors (GM). He had not tried to find employment since then. He had 4 years of high school education. He listed his service-connected disorders as preventing substantially gainful employment. In addition to his service-connected disorders he had depression and bone spurs in both shoulders. Analysis A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a claim for an earlier effective date for a TDIU. Hurd v. West, 13 Vet. App. 499 (2000). The effective date of an award of increased compensation is the earliest date when it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). With respect to an effective date prior to receipt of a claim, 38 C.F.R. § 3.400(o)(2) provides that: Disability compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. The term “claim” is broadly defined 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); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Nevertheless, a claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C. § 5101(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An intent to apply for benefits is an essential element of any claim, whether formal or informal. Criswell v. Nicholson, 20 Vet. App. 501 (2006). A claim or an application is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to benefit. 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34 – 35 (1998); see also Lalonde v. West, 12 Vet. App. 378, 380 – 81 (1999). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Importantly, medical evidence reflecting treatment for and diagnosis of a condition cannot constitute, by itself, an informal claim for a TDIU 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" a benefit. C.f. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). In this case, the Veteran satisfied the schedular TDIU criteria under 38 C.F.R. § 4.16(a) throughout the time period in question. However, prior to the current effective date for a TDIU rating, there is no evidence in the record demonstrating that the Veteran filed a formal or informal claim for TDIU. While the Veteran's VA and private treatment records contain references to his employment history prior to September 17, 2012, these records merely state that the Veteran was retired from employment with G.M. and that he moved from Michigan to Georgia to be closer to his wife's family. These records do not suggest that the Veteran ended his employment solely due to physical limitations caused by his service-connected disabilities. To the contrary, it is not until receipt of his VA Form 21-8940, in October 2012 that he first reported that it was his service-connected disabilities that led to his no longer being employed. Moreover, clinical records of treatment, alone, without an expression of a belief of entitlement to compensation are insufficient to establish an informal claim for service connection under governing regulations in effect prior to March 23, 2015. “[T]he essential requirements of any claim, whether formal or informal," were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 38 C.F.R. § 3.155(a) (effective to March 23, 2015); see MacPhee v. Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006). The clinical records received after the August 2010 rating decision show that the Veteran was repeatedly advised to control his blood pressure and diabetes to limit any progression of kidney disease. Even in October 2010 he reported that his exercise regimen was moderate and VA examinations in October 2011 show that his service-connected disorders had not required hospitalization and it was concluded by an examiner that his conditions did not affect his usual occupation and as to daily activities they would only cause difficulty with performing yard work and strenuous activities. Even his erectile dysfunction did not impact his ability to work. As the records associated with the claims file within one year of the August 2010 rating decision did not give any indication that the Veteran was unemployable due to his service-connected disabilities, the Board must find that the claim for TDIU was not raised during this period. See Rice, cited above. Subsequently, a VA physician reported in July 2012 that it was recommended that he not exercise until clear after a cardiology evaluation but, in this connection, the Veteran is not, and was not then, service-connected for any cardiac disability. The Board also recognizes that the Veteran’s representative submitted a November 2020 private retrospective opinion from a vocational specialist indicating that the Veteran was unemployable due to his service-connected disabilities since June 2008. However, this opinion does not purport to show that there was any intent to file a claim on the part of the Veteran prior to September 2012. Although the examiner discusses medical evidence during the earlier period and indicates that such functional impairment documented in the evidence precluded employment, this opinion does not show that a formal or informal claim was filed for TDIU prior to September 2012. Likewise, as outlined above, the evidence during the earlier period on its face simply does not show any indication that the Veteran was claiming TDIU due to his service-connected disabilities; or that he was unemployable solely due to such disabilities. The private examiner’s subsequent discussion of this evidence over eight years later cannot be deemed an earlier claim for TDIU. In sum, there is no indication in the record of any intent to file a claim for TDIU prior to September 2012. Therefore, the Board finds that the Veteran’s claim for TDIU was first received by VA on September 17, 2012. Thus, it must be determined whether it became factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment one year prior to this date. See Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2). However, based on the evidence of record, the Board finds that the evidence does not show that it was factually ascertainable prior to September 17, 2012 that the Veteran was unable to obtain or maintain substantially gainful employment. In this regard, the evidence prior to September 17, 2012, demonstrated that the Veteran had some functional limitations due to the collective impact of his service-connected disorders. However, even though his employment had been as a factory worker, given his high school education and the lack of any mental or psychological incapacity he was capable of performing nonstrenuous work. This would include work such as in an administrative or clerical setting. The Board finds the October 2011 VA examination reports, which showed that the Veteran’s disability did not affect his usual occupation, to be the most probative evidence on whether the Veteran was unemployable the year prior. In sum, he was able to perform the mental and physical acts required to obtain and retain substantially gainful employment prior to September 17, 2012. As to the Veteran’s receipt of SSA disability benefits prior to September 17, 2012, VA was first notified of the Veteran's receipt of disability retirement benefits from the SSA, effective January 1, 2009, in a letter received in April 2012. This does not support an earlier effective date for TDIU benefits because SSA benefits are not based solely on the impact of service-connected disabilities alone on employability. To the contrary, SSA disability benefits are awarded after consideration of all of the Veteran's medical conditions. In this case the Veteran experiences several ailments in addition to his service-connected disabilities which may or may not impact his ability to obtain or retain substantially gainful employment. Also, applying for or even receiving SSA disability benefits is not evidence of intent to seek TDIU benefits because these are two separate and distinct benefits governed by different regulatory and statutory criteria and are administered by separate governmental agencies. Again, the Board acknowledges the findings of the November 2020 vocational specialist and the indication that the prior evidence showed limitations to the extent that the Veteran was unemployable. Again, the Board finds the contemporaneous evidence, specifically the October 2011 VA examinations, to be more probative than a retrospective opinion done many years later. Likewise, most of the evidence she discussed was over a year prior to the Veteran’s claim. Again, an earlier effective date cannot be awarded if the evidence is not within one year of the claim. Importantly, again, there is nothing on the face of the contemporaneous medical evidence to show that the Veteran was seeking TDIU, or that he was unemployable solely due to his service-connected disabilities. In conclusion, based on the analysis above, an effective date prior to September 17, 2012, for the award of TDIU is not warranted. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.