Citation Nr: 0004505 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-05 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to an effective date earlier than October 20, 1994, for a grant of a total disability evaluation based individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to service connection for a gastrointestinal disorder. (The issue of entitlement to payment or reimbursement for unauthorized medical expenses will be addressed in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from January 1951 to January 1953. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in June 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted entitlement to TDIU and assigned an effective date of October 20, 1994. FINDINGS OF FACT 1. Prior to October 20, 1994, the veteran was service- connected for penile scarring, rated 20 percent, and prostatitis, rated zero percent; there is no medical evidence to suggest that his service-connected disabilities precluded employment prior to that date. 2. The veteran's claim for a TDIU was not received until June 1998; an RO decision at that time granted secondary service connection for a psychiatric disorder and assigned a 50 percent rating, effective October 20, 1994; a subsequent RO decision granted a TDIU effective from that date. 3. A Board decision in October 1991 denied service connection for a psychiatric disorder, and that decision was affirmed by the Court of Veterans' Appeals (now Court of Appeals for Veterans' Claims) in December 1992; the veteran submitted no subsequent medical evidence in support of his reopened claim suggesting a link between his psychiatric disorder and service, and there was no medical evidence of record prior to October 20, 1994 indicating a link between his psychiatric disorder and a service-connected disability. CONCLUSION OF LAW An effective date earlier than October 20, 1994, for a grant of entitlement to TDIU is not warranted. 38 C.F.R. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.400, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The applicable statute and regulations provide that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an increase in disability compensation shall be the earliest date as of which it was factually ascertainable that an increase in disability had occurred, if a claim was received within one year from such date; otherwise, the effective date shall be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). In the veteran's case, the record discloses that a decision of the Board in July 1994 granted service connection for scarring of the penis and prostatitis. A rating decision in September 1994 assigned noncompensable evaluations for those disabilities. On October 20, 1994, the RO received from the veteran VA Form 21-4138, Statement in Support of Claim. On that form, the veteran stated that he was asserting a claim of entitlement to service connection for "a nervous condition" and sexual dysfunction due to his service-connected disabilities of scarring of the penis and chronic prostatitis. A rating decision in June 1998: Assigned an evaluation of 20 percent for scarring of the penis; and granted service connection for an acquired psychiatric disorder as secondary to prostatitis, evaluated as 50 percent disabling, effective October 20, 1994. The combined service-connected disability rating was 60 percent. Applicable regulations provide that total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person 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, the disability shall be ratable at 60 percent or more and that, if there are 2 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. For the purpose of one 60 percent disability, disability resulting from a common etiology will be considered one disability. 38 C.F.R. § 4.16(a). In June 1998, the RO wrote to the veteran and notified him of the rating actions taken that month. In the letter to the veteran, the RO also stated that he might be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of service-connected disabilities. The RO enclosed a copy of VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which is the form by which a veteran may file a formal claim for TDIU. Soon thereafter, the RO received a copy of a completed and signed VA form 21-8940 from the veteran. The form, which was not date-stamped by RO personnel, had a notation that it was signed by the veteran on June 22, 1998. Thereafter, as noted above, the rating decision in June 1998 granted entitlement to TDIU, effective October 20, 1994, the date of claim for service connection for an acquired psychiatric disorder. Regulations provide that any communication or action indicating an attempt to apply for one or more benefits under the laws administered by VA from a claimant or his representative may be considered an informal claim. Such informal claim must identify the benefits sought. 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 the application form is received within one year from date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (1999). The veteran's statement in support of claim, which was received on October 20, 1994, did not constitute an informal claim of entitlement to TDIU, because the veteran did not identify TDIU as a benefit he was seeking and, indeed, he made no reference to interference with his employability by service connected scarring of the penis and prostatitis or by a "nervous condition", but the effective date for the grant of TDIU was determined to be October 20, 1994, apparently because it was determined that the veteran's service- connected disabilities rendered him unemployable at the time of his original claim for service connection for a psychiatric disorder. However, there is no basis for granting an earlier effective date, as the veteran was not service-connected for a psychiatric disability prior to the date in question. In fact, prior to 1989, service connection had not been in effect for any disability, and, prior to October 20, 1994, the only compensable service-connected disability was penile scarring, rated 20 percent. Service connection for a psychiatric disorder was denied by the Board in a March 1974 decision. The veteran's application to reopen that claim was denied by Board decisions in March 1977 and October 1991; the latter decision was affirmed by the Court of Veterans' Appeals (now Court of Appeals for Veterans' Claims). On the basis of medical evidence received beginning in October 1994, secondary service connection for a psychiatric disorder was eventually granted. The veteran's TDIU claim was not received until 1998. Late in June 1998, after the rating decision of June 1998 granted entitlement to TDIU, the veteran submitted a copy of a decision in October 1972 by an administrative law judge, "ALJ" of the Social Security Administration (SSA). The ALJ's decision found the veteran to be disabled for SSA purposes since September 1970 by reason of multiple disabilities, including arteriosclerotic cardiovascular disease, spinal osteoarthritis, pulmonary fibrosis, and depressive neurosis. Based on the ALJ's decision, the veteran has argued that the effective date of TDIU should be in 1970. However, the veteran was granted social security based on a number of nonservice-connected disabilities, including depressive neurosis. That is, service connection was not in effect for a psychiatric disorder at that time. For the same reason, an effective date in October 1972 (when the AOJ made his decision) is not warranted. Prior to October 20, 1994, the veteran was service-connected for penile scarring, rated 20 percent, and prostatitis, rated zero percent. There is no medical evidence to suggest that his service-connected disabilities precluded employment prior to that date. The veteran's claim for a TDIU was not received until June 1998; an RO decision at that time granted secondary service connection for a psychiatric disorder and assigned a 50 percent rating, effective October 20, 1994. A subsequent RO decision granted a TDIU effective from that latter date. As noted above, a Board decision in October 1991 denied service connection for a psychiatric disorder, and that decision was affirmed by the Court of Appeals for Veterans' Claims in December 1992. The veteran submitted no subsequent medical evidence in support of his reopened claim suggesting a link between his psychiatric disorder and service, and there was no medical evidence of record prior to October 20, 1994, indicating a link between his psychiatric disorder and a service-connected disability. As there is no medical evidence of record that suggests the veteran was unemployable prior to October 20, 1994 because of service-connected disabilities, the effective date for a grant of a TDIU can be no earlier than that time. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than October 20, 1994, for a grant of a total disability evaluation based on individual unemployability due to service-connected disabilities is denied. REMAND In October 1998, the Board remanded to the RO the issue of entitlement to service connection for a gastrointestinal disorder for further development of the evidence, to include a medical examination. It does not appear that the requested development has been completed, and the RO has not re-certified that issue to the Board at this time. The Court has held that a remand by the Court or the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders and that such a remand imposes on the Secretary of Veterans Affairs a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The RO must comply with the Board's October 1998 remand instructions relating to the issue of service connection for a gastrointestinal disorder. Following applicable appellate procedures, that issue must be returned to the Board, if otherwise in order. R. F. WILLIAMS Member, Board of Veterans' Appeals