Citation Nr: 1760247
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-16 861 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin

THE ISSUE

Entitlement to an effective date earlier than October 23, 2007 for the award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Appellant represented by: Wisconsin Department of Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J.N. Moats, Counsel

INTRODUCTION

The Veteran served on active duty with the United States Navy from June 1965 to August 1969, to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA), which effectuated an April 2012 Board decision that granted a TDIU. The RO assigned an effective date of October 23, 2007, the date the Veteran was awarded service connection for posttraumatic stress disorder (PTSD).

In May 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

The Veteran’s VA Vocational Rehabilitation folder was associated with his claims file in September 2017. However, these records are dated after the current effective date for a TDIU and do not address the Veteran’s employability during the period in question. As such, these records are not relevant to the issue on appeal and, in turn, waiver of RO consideration of this evidence is not necessary.

FINDING OF FACT

Prior to October 23, 2007, the Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation.

CONCLUSION OF LAW

The criteria for an effective date prior to October 23, 2007 for the award of a TDIU have not been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. § 3.400 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

With respect to the Veteran’s claim herein, the Veteran has not alleged that VA has not fulfilled its duty notify or assist in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Analysis

The Veteran is seeking an effective date prior October 23, 2007, for the award of TDIU. The Veteran essentially asserts that the effective date should be March 6, 2003, the effective date of service connection for nephropathy with hypertension, diabetes mellitus, type II, peripheral neuropathy of the lower extremities, and coronary artery disease. He has also generally asserted that an earlier effective date is warranted from when he first was diagnosed with these disorders. The Veteran has reported that he last worked full time in February 2003.

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 application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute then goes on to specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is 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).

For purposes of the analysis below, the Board observes that in order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, 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.

VA regulations establish objective and subjective standards for an award of a total rating based on unemployability. When the veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where one disability is ratable at 60 percent or more, or where there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).

The Board notes that VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the present appeal for an earlier effective date pertains to a period prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case.

Prior to March 24, 2015, the regulations provided that a report of examination or hospitalization from a VA facility or uniformed services medical facility could serve as an informal claim for increase or to reopen. 38 C.F.R. § 3.157 (2014). The regulation specifically provides that the provision is only applicable “once a formal claim . . . for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree.” 38 C.F.R. § 3.157 (b) (2014).

In pertinent part, on March 6, 2003, the Veteran filed his initial claim for service connection for diabetes, type II, and PTSD. Importantly, although service connection was awarded for diabetes and associated complications, service connection for PTSD was denied in a July 2004 rating decision. The Veteran appealed this decision to the Board and a statement of the case was issued in March 2005; however, he failed to submit a substantive appeal. In the interim, a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, was received in August 23, 2004. At that time, the Veteran indicated that he had been employed as a supervisor for Chrysler from 1998 to 2000, followed by another supervisory position which he held briefly for five months until April 2002. Thereafter, he was employed as a teacher in 2002 and 2003. The Veteran reported that he had not worked full time since early February 2003 due to PTSD. The application reflects that the Veteran has a college education with no additional specialized training or education (although other evidence on file reflects that he has a Master’s degree). The Veteran noted that he was on long-term disability for PTSD. Service connection for PTSD was again denied in an October 2006 rating decision. The Veteran filed his claim to reopen on October 23, 2007 and service connection was awarded, effective October 23, 2007, in an April 2008 rating decision.

The Veteran’s service connected conditions consist of: posttraumatic stress disorder (PTSD) with depression and alcohol abuse (rated as 50 percent disabling effective October 23, 2007); nephropathy with hypertension associated with Type II diabetes mellitus (rated as 30 percent disabling effective March 5, 2003); Type II diabetes mellitus (rated as 20 percent disabling effective March 6, 2003); peripheral neuropathy of the right lower extremity associated with Type II diabetes mellitus (rated as 10 percent disability effective March 6, 2003); peripheral neuropathy of the left lower extremity associated with Type II diabetes mellitus (rated as 10 percent disability effective March 6, 2003); a sternotomy scar (rated as 0 percent disabling from May 2011); and erectile dysfunction associated with PTSD (rated as 0 percent disabling from May 30, 2014). Service connection for coronary artery disease was also established with ratings ranging from 30 to 100 percent between March 2003 and May 2011, and a 10 percent evaluation assigned from September 2011. The Veteran’s combined ratings have been: 70 percent from March 6, 2003; 90 percent from October 23, 2007; 100 percent from May 12, 2011; and 80 percent from September 1, 2011.

Although the Veteran had a combined rating of 70 percent from March 6, 2003 to October 23, 2007, he did not have at least one disability ratable at 40 percent or more. However, as the Veteran’s nephropathy, diabetes mellitus and peripheral neuropathy all result from a common etiology and when combined result in a rating of 40 percent or more, the Veteran has met the scheduler criteria since the initial award of service connection in March 2003. See 38 C.F.R. § 4.16(a).

By way of background, an April 2003 private opinion showed that it was recommended that the Veteran terminate his employment due to his PTSD symptoms, further compounded by additional physical concerns. An August 2003 VA examination showed that the Veteran’s diabetes mellitus was under better control with no evidence of nephropathy. The Veteran’s coronary artery disease had not changed significantly since his diagnosis in 2002. Moreover, a December 2004 examination for coronary artery disease observed that the Veteran currently had no current symptoms or complaints. The file also contains a March 2005 statement from Dr. P.D, who indicated that he had been treating the Veteran along with Dr. J. (a psychiatrist) and Dr. S. (a cardiologist). The doctor opined that the Veteran was permanently disabled due to multiple medical problems including: obesity, chronic low back pain, diabetes, peripheral neuropathy, chronic bilateral knee pain, bipolar disorder and PTSD. The doctor concluded that the Veteran was permanently unable to work.

In April 2005, employment information was received from the school district where the Veteran had been teaching. The information revealed that the Veteran had been employed from August 2001 to February 2003, and was technically still employed subsequent to that date, although it was noted that he was on leave from the position. Subsequent information indicates that the school board had approved the Veteran’s resignation from his teaching position, effective from June 2005.

An April 2005 decision from the Social Security Administration is also of record, reflecting that disability benefits were approved from November 2003 due to medical conditions including PTSD, depression and heart disease as well as other impairments.

In a May 2005 VA examination report, the examiner determined that there was no evidence indicating that the Veteran’s service-connected diabetes mellitus, or any diabetic medication, would impair his ability to work or do any labor job. It was noted that his non service-connected conditions including cervical neck fusion, morbid obesity, and poorly controlled hypertension would impair his ability to work. The examiner added that the Veteran also had other medical conditions, not related to diabetes, which would impair his ability to work.

In July 2007, a VA examiner provided another opinion in the context of an examination conducted to assess the Veteran’s diabetes. Importantly, the examiner also noted that with respect to the Veteran’s coronary artery disease, a stent was placed in 2002 and he had done well since then. He had virtually annual Persantine stress tests with good ejection fraction of 53 percent and no ischemia. There were no symptoms of congestive heart failure. He had rare arm pain that the Veteran planned to try a nitroglycerin for his estimated METs level of 6. Further, his blood pressure was under good control and his recent renal function studies showed normal BUN, creatinine and urinary microalbumin. An estimated glomerular filtration rate was 88 with a normal above 60. The examiner opined that given the Veteran’s medical history and the examination findings (diabetes, hypertension, peripheral neuropathy of the lower extremities), he should be able to be gainfully employed in at least sedentary full-time employment. The examiner noted that the decision was made without regard to any other service-connected or nonservice-connected disabilities; or in regards to age. Also, any medication for these disabilities was considered.

Again, the Veteran filed an application for a TDIU on August 23, 2004. At the Board hearing, the Veteran sought an effective date of either March 6, 2003 or even earlier dating back to 1982 when he first began experiencing problems. However, as TDIU can only be awarded based on service-connected disabilities, an effective date prior to the award of service connection cannot be awarded. In turn, as the Veteran was not service-connected for any disabilities prior to March 6, 2003, an effective date prior to this date cannot be assigned. Moreover, the effective dates of these disorders are not currently before the Board.

The Board recognizes that the Veteran was awarded service connection on March 6, 2003 for nephropathy, diabetes mellitus, peripheral neuropathy of both lower extremities and coronary artery disease. Further, the Board observes that the United States Court of Appeals for Veterans Claims (Court) has held that 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 or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has been awarded service connection since March 6, 2003 and he has asserted that he was unable to work due to his service-connected disabilities since that date, the Board finds that a claim for TDIU has been pending since that date.

Nevertheless, the Board finds that the evidence of record does not show prior to October 23, 2007, the date of award of service connection for PTSD, that the Veteran was unable to obtain or maintain substantially gainful employment. In this regard, the medical evidence of record does not show that the Veteran’s service-connected disabilities during this period resulted in functional impairment severe enough to preclude him from obtaining or maintaining substantially gainful employment. Rather, the Veteran primarily claimed in his initial TDIU application and statements of record that he was unable to work due to his PTSD. Importantly, the medical evidence also showed that the Veteran was predominantly unable to work due to his PTSD. Significantly, the VA examinations during this period document the functional impairment caused by the Veteran’s service connected diabetes and its complication as well as coronary artery disease and the examiners still determined that the Veteran was employable in sedentary type positions. In this regard, the May 2005 VA examiner determined that there was no evidence indicating that the Veteran’s service-connected diabetes mellitus, or any diabetic medication, would impair his ability to work or do any labor job. Likewise, the July 2007 VA examiner provided another opinion finding that given the Veteran’s education and employment background, the Veteran would be capable of obtaining sedentary positions. Importantly, this examiner also noted with respect to the Veteran’s coronary artery disease, that a stent was placed in 2002 and he had done well since then. The examiner did not document any functional impairment due to the Veteran’s coronary artery disease. Further, given the Veteran’s work experience as a teacher and college educated background, it is reasonable to assume that he would have been qualified for sedentary or desk employment.

The Board recognizes that in March 2005, Dr. P.D, opined that the Veteran was permanently disabled due to multiple medical problems including: obesity, chronic low back pain, diabetes, peripheral neuropathy, chronic bilateral knee pain, bipolar disorder and PTSD. The doctor concluded that the Veteran was permanently unable to work. However, this opinion also indicated that the Veteran was unable to work due to numerous nonservice-connected disabilities, including PTSD. As such, it has minimal probative value in determining the functional impairment on the Veteran’s employment due to his service-connected disabilities alone.

The Veteran has also relied on the fact that he was receiving Social Security Administration (SSA) disability benefits during this period. Nevertheless, although he was awarded SSA benefits for PTSD, again he was not service-connected for this disorder at that time. Moreover, he was also awarded such benefits based on other nonservice-connected disorders. As such, these records also do not show that the Veteran was unemployable during the period in question due to his service-connected disabilities alone and again have minimum probative value.

In sum, the records show that the Veteran was primarily unemployable due to the functional impairment caused by his PTSD. In this regard, the Veteran has asserted that an earlier effective date for PTSD is warranted. Importantly, the issue of an earlier effective date for PTSD is not currently before the Board. Nevertheless, the Board will address the Veteran’s assertions. He has essentially claimed that he should have been allowed more time to file his substantive appeal to the March 2005 statement of case as he was intimidated by the appeals process. The Board observes that in certain instances, the time for perfecting an appeal of an earlier decision may be equitably tolled because of extenuating circumstances, such as mental or physical incapacity. Case law has indicated that, as a claims processing rule, rather than jurisdiction-conferring statute, the one year period specified in § 5110(f) is subject to equitable tolling in certain circumstances. See Bowles v. Russell, 551 U.S. 205, 210 (U.S. 2007) (noting the difference between claims-processing rules and jurisdictional rules); Barrett v. Shinseki, 22 Vet. App. 457, 460 (2009) (discussing Bowles and the distinction between claims- processing rules and jurisdictional statutes); Henderson v. Peake, 22 Vet. App. 217, 220n.2 (2008) (citing John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750, 753 (2008), for the proposition that a claims-processing rule or statute of limitations may be equitably tolled, as neither is a jurisdiction-conferring statute as contemplated by Bowles); Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). In addition to the concept of equitable tolling, VA has promulgated a regulation that allows for time periods to be tolled based on good cause. See 38 C.F.R. § 3.109. In relevant part, noted the Court, this regulation reads, “[t]ime limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown.” 38 C.F.R. § 3.109(b).

Nevertheless, here, although the Veteran has asserted that he was intimidated by the process, there is no evidence that he was unable to understand the statement of the case provided. Moreover, there was no medical evidence at that time showing mental incapacity. Further, the Veteran was represented at that time and there was no indication from the Veteran’s representative, who was copied on the statement of the case, that the Veteran was mentally incapable of understanding his rights. Given this evidence fails to demonstrate physical or mental incapacity, the substantive appeal filing period cannot be tolled on constitutional grounds for equitable reasons. See id.

Moreover, importantly, the Court has held that there can be no “freestanding” claim for an earlier effective date, because to allow such a claim would be contrary to the principles of finality set forth in 38 U.S.C. §§ 7104, 7105 ( 2014). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, the finality of the effective date precludes any attempt to now claim an earlier effective date on grounds other than clear and unmistakable error (CUE) or a motion for reconsideration. Further, in March 2014, the RO denied a claim of CUE in assigning an earlier effective date for PTSD and this decision was not appealed to the Board.

The Veteran has also asserted that an earlier effective date would be warranted under Nehmer v. United States Department of Veterans Affairs. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). However, as PTSD is not a presumptive disorder based on exposure to herbicides under applicable VA regulations, Nehmer is not applicable. Likewise, with respect to the Veteran’s disabilities that are presumed due to herbicide exposure, the Veteran was not denied compensation for these disorders between September 25, 1985, and May 3, 1989; his claim for service connection was not pending before VA on May 3, 1989; and his initial claim was not received within one year from the date of his separation from service. Thus, the effective date shall be the later of the date such claim for service connection was received by VA or the date the disability arose. See 38 C.F.R. § 3.816(2). In this case, the Veteran never filed a claim of entitlement to service connection for such disorders, or a claim that can be reasonably construed as a claim for service connection prior to March 3, 2003. Moreover, again, the Board has determined that the Veteran was not unemployable due to these disorders alone.

In sum, while the Veteran’s other service-connected disabilities did contribute to the Veteran’s unemployability, they did not cause the Veteran’s unemployability. Rather, the record shows that the Veteran was primarily unable to work due to his PTSD in conjunction with his other disorders. As the Veteran was not granted service connection for PTSD until October 23, 2007, the Veteran was not unemployable based upon service-connected disabilities until that date. As such, his service-connected disabilities did not preclude him from substantially gainful employment prior the award of service connection for PTSD. In conclusion, based on the analysis above, an effective date prior to October 23, 2007, for 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.

ORDER

An effective date prior to October 23, 2007, for the award of TDIU is denied.

____________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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