Citation Nr: 0007475 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-32 681A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an effective date earlier than April 11, 1994, for the award of a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from November 1944 to November 1945, and from January 1947 to March 1966, when he retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico which denied the appellant's claim of entitlement to an effective date earlier than April 11, 1994, for the award of a total disability rating based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. In April 1997, the RO evaluated the appellant's service- connected lumbar spine disability as 60 percent disabling, effective from January 9, 1992. The appellant had previously been assigned a 20 percent evaluation for his back disability, effective from April 1983. The combined rating was at 40 percent effective from September 1985, and at 70 percent, effective from January 9, 1992. 3. The appellant submitted an informal claim for a total rating based on individual unemployability on May 12, 1993, and he was not shown to be employed at that time. No earlier claim is shown. CONCLUSION OF LAW The criteria for an earlier effective date of May 12, 1993, but no earlier, for the assignment of a total rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file the Board concludes that the appellant's earlier effective date claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that all relevant facts have been developed. The Board concludes that, as required by the applicable statute, the duty to assist has been fulfilled. Id. The appellant contends that his entitlement to a total rating based on individual employability should be effective from 1972. The Board notes that it issued a decision, in August 1981, in which the appellant's claim of entitlement to a total disability rating based on individual unemployability was denied. There were also subsequent rating decisions, issued by the RO in July 1982, and February 1984, which denied entitlement to a total disability rating based on individual unemployability. The appellant did not appeal the former, but did appeal the latter; a Statement of the Case (SOC) was issued in September 1984, and listed the total rating issue as being on appeal. However, as noted in the March 1986 Board decision, the appellant limited his substantive appeal and did not include the unemployability issue in his appeal of the February 1984 rating decision and finality therefore has attached to that rating decision. The regulations state 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 the 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 award for increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the date of receipt of the claim. Id. Applying the provisions of 38 C.F.R. § 3.400(o)(2) and in view of the evidence of record, in this case entitlement to an earlier effective date of May 13, 1993 is warranted. The Board finds that the appellant's May 13, 1993 Notice of Disagreement (NOD), submitted on a VA Form 21-4138, in particular his statement that his service-connected disc condition rendered him "incapable of any type of work", is an informal claim of entitlement to a total rating based on individual unemployability due to service connected disabilities. The appellant subsequently filed a VA Form 21- 8940, Application for Increased Compensation based on Unemployability, in April 1994. Under the regulations, that application is deemed to be filed as of the date of receipt of the informal claim on May 13, 1993. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two 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. 38 C.F.R. § 4.16(a). Regarding the service-connected disabilities, the record shows that, in April 1997, the RO evaluated the appellant's service-connected lumbar spine disability as 60 percent disabling, effective from January 9, 1992. The appellant had previously been assigned a 20 percent evaluation for his back disability, effective from April 1983. The combined rating was at 40 percent effective from September 1985, and at 70 percent, effective from January 9, 1992. One of the effects of the April 1997 rating decision was to make the appellant's combined disability rating 70 percent as of January 9, 1992. Therefore, as of that date, the appellant met the percentage criteria for consideration of a total disability rating as set forth in 38 C.F.R. § 4.16(a), in that he had two or more disabilities, with one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. In April 1997, the appellant was granted entitlement to a 100 percent rating for compensation based on individual unemployability due to his service connected disabilities. The effective date of the total rating was April 11, 1994, the date which the RO concluded was the date of the claim. However, as previously noted, May 13, 1993 has been found by the Board to be the date of the filing by the appellant of an informal claim for a total rating based on individual unemployability. Under the regulations cited above, the effective date can be no earlier than May 13, 1992, one year before the date of claim. After careful review of the evidence of record, the Board finds no evidence of an earlier informal claim for a total rating within the delimiting period. None of the statements from the appellant received in the relevant time period provided indication that he felt that he was entitled to a total rating based upon his individual unemployability due to his service-connected disabilities. Furthermore, the Board notes that there is no VA medical evidence of record demonstrating that the appellant was medically determined to be unemployable due to service- connected disabilities prior to May 13, 1993, and that the first private medical evidence within the delimiting period indicating that the appellant was unemployable was received by the RO in July 1993. Therefore, the assignment of an effective date earlier than May 13, 1993, the date of the claim, for the grant of the total rating based on individual unemployment is not warranted. ORDER Entitlement to an earlier effective date of May 13, 1993, but no earlier, for the grant of entitlement to a total rating based on individual unemployability due to service-connected disabilities is granted, subject to regulations pertinent to the distribution of monetary awards. MICHAEL D. LYON Member, Board of Veterans' Appeals