Citation Nr: 0000895 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-12 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an effective date prior to June 16, 1988, for an award of a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from August 1954 to July 1956. This appeal comes before the Board of Veterans' Appeals (Board) from an April 1995 rating action from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellant's claim has been developed. 2. In November 1984, the appellant claimed TDIU. 3. In September 1985, the RO issued a decision denying the appellant's claim for TDIU. He filed a timely notice of disagreement with the denial. The claim has remained open since then. 4. The appellant met the schedular criteria for entitlement to TDIU on September 18, 1986, and it was factually ascertainable that he was unable to work due to service connected disability on that date. CONCLUSION OF LAW The criteria for an effective date of September 18, 1986, for a total disability rating due to individual unemployability have been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION By means of a rating action dated in November 1975, service connection was established for rheumatic heart disease with mitral insufficiency, Class III-C; the appellant was assigned a 60 percent rating. He was also found to be unemployable by reason of this condition. By means of a rating action dated in August 1979, his heart condition was expanded to include mitral valve replacement. His therapeutic classification was changed to Class II-B and the disability evaluation was reduced to 30 percent disabling and the TDIU was terminated. The appellant filed numerous subsequent claims for increased rating for his heart condition as well as for TDIU which were denied. The record indicates that his subsequent claims for TDIU were denied by means of, among others, a Board decision dated in September 1984. A TDIU claim was again raised in a hearing at the RO on November 30, 1984. That claim, along with a claim for increased rating for heart disease and for secondary service connection for psychiatric disability, was denied by rating decision in August 1985. A handwritten notation on the rating decision states that a letter was sent to the appellant on September 12, 1985. A copy of the letter is not on file. Presumably, this letter informed him of the denial, and of his appellate rights. 38 C.F.R. § 3.103(e)(1985). On September 18, 1986, VA received a statement in support of claim from the appellant in which (as translated from Spanish to English) he indicated that he was writing "In reference to your letter dated September 18, 1985, I have prepared a medical report by Dr. Jose A. Pereyo, Cardiologist, in which, by means of medical studies and examinations of Physical Tolerance, new evidence is given out...". The attached statement from Dr. Pereyo indicates that the appellant was reevaluated in August 1986 and that tests showed that he had a severe limitation of functional capacity (Class III-C) due to severe cardiac arrhythmia, altered left ventricular hemodynamics with dilated left atrium, and probable coronary artery disease. It was the physician's opinion that the appellant was totally and permanently disabled. Subsequently, during a hearing held in October 1987, the appellant again raised the matter of his total incapacity. However, a formal claim for TDIU was not received until June 16, 1988. There is no indication in the evidence of record that a formal application for TDIU was sent to the appellant at any time in 1986 or 1987. Pursuant to a Board decision, dated in March 1995, which determined that medical records since 1986 indicate that the appellant's heart condition more nearly approximated the criteria for a 60 percent rating, and that the appellant's service connected disabilities rendered him unemployable, the RO awarded a 60 percent rating for the heart condition effective from September 18, 1986, and TDIU effective from June 16, 1988 (the date of the filing of the formal claim for TDIU). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is a formal or an informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1. An informal claim is any communication or action indicating an intent to apply for benefits from, among others, a claimant. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Id. 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. Id. 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. If VA fails to forward the application form to the appellant, the 1 year filing period does not start to run. See Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992). In general, the effective date of an evaluation and award of compensation will be the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an increased rating for a service-connected disability is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within 1 year from such date, otherwise, the date of the receipt of the claim. 38 C.F.R. § 3.400(o). When a formal claim has been filed, an informal request for an increased rating will be accepted as a claim. 38 C.F.R. § 3.155. A report of a private examination or hospitalization will be accepted as an informal claim; the date of the claim will be the date of receipt of such evidence. 38 C.F.R. § 3.157. Under the relevant provisions of 38 C.F.R. § 4.16(a), it is stipulated that where a veteran has a single service- connected disability rated at 60 percent or more, or a combined service-connected disability rating of at least 70 percent, with at least one service-connected disability rated 40 percent or more, a total disability rating may be assigned when the schedular criteria is less than total, if the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation. 38 C.F.R. § 4.16. The Board has considered the evidence of record in its entirety and finds that it was on November 30, 1984 that the appellant first claimed TDIU after the September 1984 Board decision. That claim (and others) was denied by rating decision in August 1985. Presuming administrative regularity, the appellant was informed on September 12, 1985 that he had one year from that date to initiate his appeal. In the Board's opinion, however, that presumption is rebutted by correspondence from the appellant in which indicates that he was notified of the denial by letter dated September 18, 1985 (emphasis added). Since he replied within one year of the date of notification, on September 18, 1986, his reply fell within the time period allowed to file a notice of disagreement. 38 C.F.R. §§ 19.129 19.131 (1985). The Board is of the opinion that the appellant's statement received on September 18, 1986 constitutes a notice of disagreement as to the TDIU claim. The statement makes specific reference to the attached medical opinion and that opinion was to the effect that the appellant was totally disabled due to heart disease. Accordingly, the TDIU claim filed in November 1984 has remained open since that time. The question remains as to when the appellant's entitlement to TDIU was first shown in connection with the November 1984 claim. The service connected rheumatic heart disease has been rated as 30 percent from November 1979, and as 60 percent from September 1986; the service connected dysthymic disease has been rated as 30 percent November 1991. It has been determined that these two disorders have a common etiology, and accordingly, the appellant met the schedular criteria for TDIU effective on September 18, 1986. 38 C.F.R. § 4.16 (1986). It was also factually ascertainable from medical evidence received on September 18, 1986, that his heart condition prevented substantially gainful employment. Since the date entitlement is shown is later than the date of claim, the former is the proper is the proper effective date for TDIU. Therefore, entitlement to an earlier effective date of September 18, 1986, for TDIU is warranted. ORDER Entitlement to an effective date of September 18, 1986, for a TDIU rating is granted, subject to the criteria which govern the payment of monetary awards. NANCY I. PHILLIPS Member, Board of Veterans' Appeals