Citation Nr: 0004835 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 94-05 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date earlier than April 16, 1993, for a total rating based on unemployability due to service-connected disabilities (TDIU). 2. Entitlement to service connection, to include on a secondary basis, for cervical spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran retired from service in July 1969, after having served on active duty for a period in excess of 20 years. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions, the earliest of which was entered in August 1992, of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A hearing was held before a hearing officer at the RO in March 1994, and the hearing officer's decision was entered in October 1994. The appeal was last before the Board in June 1997, at which time it was remanded for further development. In conjunction with the same, the RO, in a rating decision entered in April 1998, granted an earlier effective date, April 16, 1993, for the veteran's TDIU, with which earlier effective date, however, the veteran continues to disagree. Supplemental Statements of the Case were mailed to the veteran in April 1998 and November 1998. Thereafter, the appeal was returned to the Board. On appeal the veteran has raised the issues of entitlement to service connection for heart disease and hypertension. These issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. FINDING OF FACT Unemployability due to service-connected disablement is not shown prior to April 16, 1993. CONCLUSION OF LAW The requirements for an effective date for an award of a TDIU prior to April 16, 1993, have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's earlier effective date claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). VA will grant a total rating for compensation purposes based on unemployability where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). Under the law, in the context of this issue on appeal, the effective date of an award of a total rating based on unemployability is the earliest date as of which it is factually ascertainable that such benefit was warranted if a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). In asserting entitlement to an effective date earlier than April 16, 1993, for an award of a TDIU, the veteran contends that the proper effective date for his TDIU should be at some point in "1980", inasmuch as he was at that time found to be totally disabled by the Social Security Administration (SSA). Before addressing the foregoing contention, the Board would initially observe that the presently assigned effective date for the veteran's TDIU, April 16, 1993, is the date on which he initially satisfied the schedular criteria necessary to qualify for a TDIU. At the same time, the Board is cognizant that a TDIU might be awarded even if the requisite schedular criteria is not met if a claimant is nevertheless shown to be "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities". 38 C.F.R. § 4.16(b). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the United States Court of Appeals for Veterans Claims (Court) addressed the issue of entitlement to an earlier effective date in a TDIU claim and pointed out that the applicable statutory and regulatory provisions, properly construed, require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a) (1999); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The record reflects that the veteran in July 1990 submitted what was apparently his initial formal claim for a TDIU. Such benefit was denied, in the absence of evidence demonstrating that the veteran's service-connected disabilities alone precluded him from securing and following substantially gainful employment, in a rating decision entered in November 1990. The veteran did not appeal. In light of the foregoing, and as the veteran has not presented a valid claim of clear and unmistakable error (CUE), that decision is final for purposes of establishing an earlier effective date, cf. Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Board therefore turns to the record to see when the veteran presented a new formal or informal claim of entitlement, or when entitlement otherwise arose. In this respect, the veteran is noted to have been hospitalized at a VA medical center in April 1991, however, at no time during that period of treatment was a claim of entitlement to unemployability benefits presented, and no physician ever suggested that the appellant was unemployable. The treatment provided was for a history of a peptic ulcer and for several nonservice connected disorders. Between 1990 and 1993, the veteran was periodically treated at VA outpatient clinics for service connected and nonservice connected disorders. Additionally, in July 1991, the appellant requested entitlement to a temporary total rating based on the provisions of 38 C.F.R. § 4.30 (1999). The appellant did not at any time, however, present any claim or evidence suggesting that entitlement to a TDIU pursuant to 38 C.F.R. §§ 4.16, 4.17 was in order. The treatment provided was for orthopedic complaints, nonservice connected depression, a nonservice connected cervical disorder, and a gastrointestinal disability. There is no opinion from any physician during this time suggesting that the appellant was unemployable. The veteran was afforded a VA examination in March 1992. During the examination diagnoses relative to the lumbar spine, left wrist, and right ankle were entered. Additionally, in February 1992, the appellant was hospitalized for approximately two inpatient days for care of a gastrointestinal disability. Again, however, the appellant did not at any time present any claim or competent medical evidence suggesting that entitlement to a TDIU pursuant to 38 C.F.R. §§ 4.16, 4.17 was in order On April 16, 1993, the veteran presented a claim of entitlement to increased evaluations for his service connected disabilities. Based on this claim the RO in April 1998 granted benefits based on the provisions of 38 C.F.R. § 4.16. In light of the foregoing, it is evident that entitlement to a total rating based on individual unemployability due to service connected disabilities was not clinically ascertainable prior to April 16, 1993. It follows then that the effective date for an increased evaluation cannot, even under a best case scenario, be any earlier than the date of receipt of claim, April 16, 1993. 38 C.F.R. § 3.400(o)(2). Hence, in the absence of a new claim prior to April 16, 1993; in the absence of medical evidence demonstrating that a total disability evaluation based on individual unemployability was not factually ascertainable prior to April 16, 1993; and in view of the totality of the evidence, the Board finds that the preponderance of the evidence is against entitlement to an effective date. Hence, the claim is denied. In reaching this decision the Board considered the contention that the proper effective date for his TDIU should be at some point nearly twenty years ago, coincident with the time from which he was found to be totally disabled by the SSA. The prior final rating decision of November 1990, however, postdated his initial entitlement to SSA benefits. Hence, as the effective date assigned may not predate a prior final rating decision absent a finding of CUE, it follows that an award entered decades ago may not form the basis for an earlier effective date. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than April 16, 1993, for an award of a total rating based on unemployability due to service- connected disabilities is denied. REMAND With respect to the claim of entitlement to service connection for a cervical disability, to include on a secondary basis, the appellant avers, in part, that he presently has a chronic cervical disorder due to trauma sustained in a car accident in the mid-1950's. In this regard, the Board observes that volume three of the claims file contains a January 1981 letter from Russell L. Thomas, M.D., who opined that the veteran had chronic cervical radiculopathy which was likely "aggravated by his auto accident." Unfortunately, only "Page 2" of this correspondence item is of record. Moreover, the file elsewhere reflects that the veteran has been involved in more than one car accident postservice. Hence, it is not clear which accident(s) Dr. Thomas may be referring to. Nevertheless, inasmuch as Dr. Thomas' statement may conceivably relate present disablement involving the veteran's cervical spine to service, the Board is of the view that this claim is well grounded. 38 U.S.C.A. § 5107(a) (West). At the same time, although the veteran is also asserting service connection for cervical spine disability on a secondary basis, his related claim has not yet been considered on such basis by the RO. Further development is therefore in order, to include an attempt to procure a copy of the missing first page of the above-cited January 1981 item of correspondence from Dr. Thomas. The Board further notes that, in a November 1998 of a Supplemental Statement of the Case, the veteran was notified that service connection for thoracic spine disability had been denied. Thereafter, the veteran's representative, in an item of correspondence dated in September 1999, conveyed disagreement with such denial. On assessing the foregoing in light of Manlincon v. West, 12 Vet. App. 238, 240-241 (1999), the veteran's claim for service connection for thoracic spine disability must, in the present REMAND, be formally referred to the RO for the issuance of an appropriate Statement of the Case (SOC). Accordingly, the case is REMANDED for the following: 1. The RO should contact the veteran and request him to specify the names, addresses and approximate date(s) of treatment relating to any health care provider(s), whether of VA or private, who may possess clinical evidence, not currently of record, which he feels would be helpful to his claim. The RO should also request the veteran to provide the address for Russell L. Thomas, M.D., by whom he was apparently seen in 1981. Thereafter, in light of the response received and after obtaining any necessary authorization, the RO should take appropriate action to obtain copies of any clinical records indicated, to specifically include a missing first page of a January 1981 item of correspondence from Russell L. Thomas, M.D. 2. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the claim of entitlement to service connection for a cervical disorder to include entitlement to secondary service connection. 3. If the remaining benefit sought on appeal is not granted to the veteran's satisfaction, or if he expresses disagreement pertaining to any other matter, both he and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC). The veteran should also be provided appropriate notice of the requirements to perfect an appeal with respect to any issue(s) addressed therein which does not appear on the title page of this decision. In addition, whether or not it becomes incumbent on the RO to issue the foregoing SSOC, the RO must, in any event, issue a SOC to the veteran addressing his recently denied claim for service connection for thoracic spine disability. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran unless he is otherwise notified. DEREK R. BROWN Member, Board of Veterans' Appeals A CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, which when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).