Citation Nr: 0000370 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-06 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date, prior to December 18, 1996, for the grant of a total disability evaluation for compensation purposes on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from September 1969 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision from the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. In early June 1993, the veteran submitted a claim for service connection of depression, and also contended that he was unable to work due to his depression. 3. He was hospitalized by VA for schizoaffective disorder from June 1 to July 12, 1993. 4. In October 1996, the Board granted service connection for depression. 5. In November 1996, the RO granted a temporary total rating under the criteria of 38 C.F.R. § 4.29 (1999) from June 1, 1993 to July 12, 1993, based on hospitalization, and a 50 percent rating from August 1, 1993. 6. The probative evidence of record demonstrates that an informal claim for a TDIU was raised in June 1993. 7. The probative evidence of record shows that the veteran was unable to secure or follow a substantially gainful occupation due to his service-connected mental disability from June 1, 1993, the date of his VA hospitalization for treatment of schizoaffective disorder. CONCLUSION OF LAW The criteria for an effective date for a grant of entitlement to a TDIU retroactive to June 1, 1993 have been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.155, 3.157, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The pertinent evidence of record shows that the veteran submitted a statement in which he raised claim for service connection of depression in early June 1993. He also indicated that he was unable to hold a job or support himself as a result of his depression. A hospital summary from the Tuscaloosa VA Medical Center (VAMC) shows that the veteran was treated there from June 1, to July 12, 1993 for his psychiatric disability as well as alcohol dependence. It was noted that he was unemployed; however, actual employability was specified as being "Not determined." His current Global Assessment of Functioning (GAF) was found to be 40. The RO denied service connection for depression in September 1993. The veteran appealed this decision to the Board. In March and April of 1994, the veteran underwent psychiatric testing, and was diagnosed with a schizoaffective disorder (depressed type) and substance abuse. It was concluded by Dr. J.H. that the veteran was not capable of functioning vocationally to any degree. In March 1995, Dr. T.G.S. certified that the veteran had been unemployable due to his psychological condition since at least January 1995. In a June 1995 VA progress note it was noted that the veteran had last worked in May 1993. It was also noted that he was receiving disability benefits from the Social Security Administration (SSA). In July 1995, the veteran indicated that he was seeking nonservice-connected disability pension, but that he was continuing to seek service connection for his psychological disability. In October 1996, the Board granted service connection for depression. In November 1996, the RO assigned a 100 percent evaluation for depression from June 1, 1993 to August 1, 1993, based on hospitalization over 21 days under the criteria of 38 C.F.R. § 4.29, and a 50 percent rating from August 1, 1993. The issue of a TDIU was not adjudicated. In December 1996, a VA examination was conducted, during which the veteran was diagnosed with a schizo-affective disorder (depressed). His GAF was estimated as being between 41 and 50. It was noted he had apparently sought help from the Alabama Vocational Rehabilitation Agency on three occasions and that that agency had apparently concluded that he would have great difficulty in functioning in any kind of work place environment. The VA examiner concluded that the veteran's current level of social, vocational, and industrial adjustment appeared to be significantly impaired. On December 16, 1996, the veteran submitted a statement indicating that his disability had increased and that he was entitled to a TDIU. This was received by the RO on December 18, 1996. On December 19, 1996, the RO continued its 50 percent rating for depression. The issue of entitlement to a TDIU was not adjudicated. In January 1997, the veteran submitted a formal application for TDIU benefits. In March 1997, a VA progress note dated from January 1996 was submitted in which it was concluded that the veteran was unable to tolerate the stress involved in any kind of gainful employment. In August 1997 a VA examination was conducted during which the veteran reported being disabled since June 1993. He again reported being turned down on three occasions by the state vocational rehabilitation office because they did not feel that there was anything for which he could be trained. The diagnosis was major depression. A GAF of 41 was assigned, and, per this GAF score, it was noted that he had severe social and occupational impairment due to his service- connected depression. The VA examiner concluded that the veteran could not adapt to stressful circumstances and maintain effective relationships due to his depression, and that this disorder interfered with most of his routine activities. In January 1998 the RO assigned an increased rating of 70 percent for depression and granted TDIU benefits, effective December 18, 1996. The veteran submitted a notice of disagreement with this decision, specifically disagreeing with the effective date of his TDIU. He contended that he had been disabled since June 1993. In March 1998, the RO received a favorable SSA decision, dated in August 1994, in which it was found that the veteran has been disabled since May 20, 1993 solely due to his mental disability. The veteran presented testimony before the undersigned at a travel board hearing held at the RO in August 1999. During the hearing the veteran testified that he could not understand why he was given an effective date back to 1993 for the grant of service connection for his psychiatric disability, but not for a TDIU, when the evidence showed that he had been unable to work since May 1993. Transcript, pp. 2-8. Criteria A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (1999). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (1999). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (1999). The regulations also provide that a veteran may receive benefits by filing an informal claim, which is defined by "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant ... may be considered an informal claim." 38 C.F.R. § 3.155 (1999). Such an informal claim must identify the benefit sought; and, 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 received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. The date of outpatient or hospital examination will be accepted as the date of receipt of a claim for increased benefits when such reports relate to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b) (1999). According to the applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1999). In the case of claims for increased evaluations, the effective date is the date of receipt of claim or date entitlement arose, whichever is later, except as provided in paragraph two. 38 C.F.R. § 3.400(o)(1) (1999). Paragraph two provides that for disability compensation, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (1999). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met. 38 C.F.R. § 3.340. Total disability compensation ratings may be assigned under the provisions of § 3.340. However, if the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability 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). The veteran's service-connected disabilities combine to a total of 50 percent; thus, the veteran does not meet the threshold schedular criteria for a total disability rating. Id. In cases where veterans fail to meet the percentage standards set forth in paragraph (a) of this section, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this regard, the regulations provide that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. Id. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. The regulations also provide that a veteran may be considered as unemployable upon termination of employment which was provided on account of disability, when it is satisfactorily shown that he or she is unable to secure further employment. 38 C.F.R. § 4.18(b). Analysis As a preliminary matter, the Board notes that the veteran's claim for an earlier effective date for TDIU is, in essence, a claim for increased rating which, in general, is well grounded. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where the veteran has presented a well-grounded claim, VA has a duty to assist the veteran in the development of facts pertinent to his claim. The Board is satisfied that all relevant facts have been properly developed. Therefore, no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). The Board initially notes that the Board granted service connection for depression in October 1996, and the RO assigned a 100 percent evaluation, based on hospitalization, from June 1, 1993 to July 31, 1993, and a 50 percent evaluation from August 1, 1993. In January 1998, the RO assigned a 70 percent rating and granted a TDIU, effective December 18, 1996. The veteran contends that the effective date for TDIU should be retroactive to 1993. There is no indication that he has indicated disagreement with any of the rating decisions in terms of the effective dates assigned for the various disability rating percentages of depression or with the actual percentages assigned. The evidence shows that the veteran contended on June 1, 1993, that he was entitled to service connection for depression, was hospitalized by VA for his service-connected psychiatric disability on June 1, 1993, and that he was unable to work due to his depression. The evidence submitted since that time shows that the veteran was in a continuous state of unemployability. The VA hospital report for admission from June 1, to July 12, 1993, shows that the veteran was unemployed and that his GAF score was 40 on discharge. Private, VA, and SSA records have uniformly indicated that the veteran was incapable of working. In March 1995, Dr. T.G.S. concluded that the veteran was disabled from working due to his mental disability. A VA progress note from January 1996 essentially shows the attendant examiner re-stated this conclusion. VA examination reports from December 1996 and August 1997 show that the veteran was unable to maintain employment due to his service connected psychiatric disability. The December 1996 VA examiner assigned a GAF score of between 41 and 50 for his mental disability, and the August 1997 VA examiner assigned a GAF score of 41 for his depression. Therefore, because the veteran specifically contended that he was unable to work because of his depression in early June 1993, was hospitalized by VA for his service-connected psychiatric disability on June 1, 1993, and the evidence of record since that time shows that he has been in a continuous state of unemployability due to his service-connected psychiatric disability, the Board concludes that an informal claim for a TDIU was raised in June 1993. See 38 C.F.R. §§ 3.155, 3.157; Servello v. Derwinski, 3 Vet. App. 196 (1992); see also Davis v. West, U.S. Vet. App. No. 97-1694 (April 30, 1999) (non-precedential opinion). The Board must next determine when entitlement to a TDIU first arose. The record shows that, prior to December 18, 1996, the veteran's depression was rated as 50 percent disabling. Thus, prior to December 18, 1996, the veteran's depression did not meet the minimum percentage requirements for entitlement to a TDIU under 38 C.F.R. § 4.16(a). However, the probative evidence of record establishes that, prior to December 18, 1996, the veteran was entitled to TDIU benefits under 38 C.F.R. § 4.16(b). As was stated previously, a veteran who fails to establish entitlement to meet the percentage requirements under section 4.16(a) can still be entitled to TDIU if it can be established that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As was stated above, the evidence of record shows that the veteran has been unable to work due to his service connected mental disability since June 1993. His GAF score during this period has been 40 and 41, and between 41 and 50. There are VA, SSA, and private medical records for the period between June 1993 and December 1996 indicating that the veteran's service connected mental disability had disabled him from any substantially gainful employment. While there are records that attributed his unemployability to his mental disability and substance abuse, there are multiple records attributing his unemployability solely to his service connected mental disability. There are no medical records indicating that the veteran was capable of working. There is no persuasive evidence that he would be employable but for a nonservice-connected disorder. Thus, the Board concludes that the veteran submitted a informal claim for a TDIU in early June 1993, was hospitalized for his service-connected psychiatric disability on June 1, 1993, and the medical evidence establishes that his service connected depression since then prevented him from securing and following a substantially gainful occupation. Accordingly, an effective date retroactive to June 1, 1993 for a TDIU is warranted. See 38 C.F.R. § 3.400; Vettese v. Brown, 7 Vet. App. 31, 35 (1994). The Board notes that, under 38 C.F.R. § 4.16(b), in all cases of veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage requirements of section 4.16(a), ratings boards should submit such cases to the Director, Compensation and Pension Service for extra-schedular consideration. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) for the period prior to December 18, 1996. The Court has held that the Board does not have jurisdiction to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). However, the Board finds that, in this instance, the veteran has not been prejudiced by the Board's grant under section 4.16(b) without first referring it to the Director in light of the fact that the veteran has been granted the benefit he has sought on appeal. See Floyd at 96; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Entitlement to an effective date for a TDIU retroactive to June 1, 1993 is granted, subject to the regulations governing the payment of monetary awards. RONALD R. BOSCH Member, Board of Veterans' Appeals