tdiu V.a. Examination

[deltaj]

I think I read somewhere on hadit recently that a physician must sign a V.A. examination. Anybody else remember that post and why V.A. must have a physician sign the examination report? In 1974 V.A. gave my husband an increase to 30% based on a social survey and no examination was made by a V.A. physician. He was trying to get TDIU at the time because his service-connected disability caused frequent disruption of employment. I'm thinking that there must have been a requirement in 1974 in the M21-1 manual that V.A. exams had to be signed by a physician. Anybody have any helpful comments?

Edited May 2, 2009 by deltaj

[john999]

I got SC rating in 1973 without any C&P exam. Did the VA just use your husband's service medical records to make the award. How could a social survey be enough evidence to award SC? If you have the records that your husband was unemployable due to SC condition the VA should have adjudicated a claim for IU on an inferred basis. I am sure that exams probably did require a doctor's signiture if it was a genuine C&P exam. It only makes sense,otherwise VA would have janitors doing exams. They already have PA's doing the actual exam and the doctor just signs off on the nonsense. You might have basis for a CUE if the VA knew your husband was unemployable and just ignored the fact. What does your original rating use for evidence for SC? What evidence do they quote in the rating? If you really want to dip into this claim you might run it by a lawyer because the only way to get benefits if the rating became final is to do a CUE. One thing is if he never had an exam for benefits why worry if exams had to be signed or not? I don't believe exams are required for SC ratings even if most get them. I am being devil's advocate to some extent. If you have the C-file look at all evidence the VA had in their hands when decision was made. If they ignored evidence of IU then you may have something.

[sharon]

I will have to research TDIU in 1971.

Edited May 2, 2009 by sharon

[Wings]

M21-1MR, Part III, Subpart iv, Chapter 3, Section D

All original examination reports must be signed by a physician, unless the examination was performed by a clinical or counseling psychologist, dentist,

audiologist, or optometrist.

See http://www.warms.vba.va.gov/qfullhit.htw?C...HiliteType=Full

Edited May 2, 2009 by Wings

[john999]

Sharon

I am dealing with the same issue. I have a doctor's report that states I was unemployable due to SC condition in 1971 but the VA never included that in their decision making process even though they had it in the record. I don't think the basic concept of TDIU has changed since 1971. If you can't work due to your SC condition you are entitled to TDIU. However, the VA has gotten around this by interpreting the regs so that unless you have at least 60% rating you can't get TDIU. So if you are rated 30% and can't work the VA will not consider TDIU. They don't deny it but they don't even consider it. This is what happened in my case. This makes a mockery of their own regulations.

[sharon]

Citation Nr: 0306153 Decision Date: 03/31/03 Archive Date: 04/08/03DOCKET NO. 98-10 638A ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Phoenix, ArizonaTHE ISSUEEntitlement to an effective date prior to May 23, 1991 for the assignment of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.REPRESENTATIONAppellant represented by: The American LegionWITNESS AT HEARING ON APPEALAppellantATTORNEY FOR THE BOARDD. M. Fogarty, CounselINTRODUCTIONThe appellant served on active duty from February 1975 to July 1989.This matter was originally before the Board of Veterans' Appeals (Board) on appeal of a decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a January 2001 decision, the Board determined that the veteran had not raised a valid claim of clear and unmistakable error in RO decisions dated in December 1989, October 1990, or January 1991. The Board remanded the issue of entitlement to an effective date prior to May 23, 1991 for the establishment of TDIU benefits to the RO for the issuance of a Supplemental Statement of the Case. FINDINGS OF FACT1. On May 23, 1991, the RO received a statement from the veteran which it construed as a claim for TDIU benefits.2. In a February 1993 rating action, the RO granted entitlement to TDIU benefits and assigned an effective date of June 17, 1992; the effective date was later amended to May 23, 1991. 3. The RO was not in possession of any communication or evidence received prior to May 23, 1991 that could reasonably be construed as a formal or informal claim of entitlement to TDIU benefits. CONCLUSION OF LAWThe criteria for an effective date prior to May 23, 1991 for the grant of entitlement to TDIU benefits have not been met. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONVeterans Claims Assistance Act of 2000Initially, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 66 Fed. Reg. 45,620 (August 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of the new regulation is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). After reviewing the claims folder, the Board finds that there has been substantial compliance with the assistance provisions of the new legislation. The record includes service medical records, VA examination reports, VA treatment records, and private treatment records. Significantly, no additional pertinent evidence has been identified by the veteran as relevant to the issue on appeal. All identified evidence relevant to the issue decided herein has been associated with the claims folder. Moreover, in March 2002 letter and in the July 2002 Supplemental Statement of the Case, the veteran was effectively furnished notice of the types of evidence necessary to substantiate her claim as well as the types of evidence VA would assist her in obtaining. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, no further action is necessary to assist the veteran with her claims. Furthermore, the veteran has been notified of the applicable laws and regulations which set forth the criteria for entitlement to an earlier effective date. The discussions in the rating decision, statement of the case, and supplemental statement of the case have informed the veteran of the information and evidence necessary to warrant entitlement to the benefit sought. The Board therefore finds that the notice requirements of the new law have been met. The Board has reviewed the facts of this case in light of the VCAA and the new VCAA regulations. As discussed above, VA has made all reasonable efforts to assist the veteran in the development of her claim and has notified her of the information and evidence necessary to substantiate the claim. Consequently, the Board may proceed to the merits of the claim. AnalysisA review of the record demonstrates that during service the veteran was involved in a serious automobile accident resulting in multiple injuries. She was placed on the Temporary Disability Retired List and discharged from duty in July 1989. The veteran filed her initial claim for VA benefits in July 1989. The veteran underwent VA examinations in connection with her claim for disability benefits. During an October 1989 VA examination, the veteran complained of considerable pain and dysesthesias in the right chest, shoulder, upper arm, and ulnar distribution of the right hand; considerable pain, swelling, and discomfort in both ankles; loss of strength and tenderness in the deltoid muscle in her right arm; near incontinence with occasional failure; photophobia in bright sunlight; and a sensation of vertigo with changes of head position. The examiner found the veteran to be "[r]emarkably composed for the degree of damage[] she has suffered." Physical examination revealed marked right upper arm weakness and a moderate right hand grip weakness. There was ankle pain bilaterally with motion. The examiner noted that the veteran was "remarkably compensated and matter-of-fact about her multiple injuries and subsequent restrictive range of motion and activity. I found her cheerful and philosophical, despite her years ordeal."An October 1989 psychological evaluation found the veteran to be experiencing mild symptoms of organic personality syndrome with mild mood disturbance and the like. The examiner noted the veteran was enrolled in community college on a full-time schedule and doing well. It was also noted that the veteran was taking care of her family at home. The examiner indicated that if the veteran's "emotional problems can be resolved and she continues to engage in rehabilitation for her language deficiencies, she should be able to function effectively in a school or work environment and continue to improve her ability to manage her personal affairs."In a December 1989 rating decision, the RO established service connection effective July 11, 1989 and assigned ratings as follows: total abdominal hysterectomy with bilateral salpingo-oophorectomy, evaluated as 50 percent disabling; right shoulder fracture-dislocation status post open reduction internal fixation (orif) and rotator cuff repair with ankylosis, evaluated as 40 percent disabling; left subtrochanteric femur fracture with slight hip disability, evaluated as 10 percent disabling; right subtrochanteric femur fracture with slight hip disorder, evaluated as 10 percent disabling; left ankle bimalleolar fracture status post orif with some fusion, evaluated as 10 percent disabling; deformity of the right ear auricle and reattachment scar, evaluated as 10 percent disabling; organic brain syndrome with post-traumatic depression, evaluated as 10 percent disabling; right ankle bimalleolar fracture status post orif, evaluated as zero percent disabling; fracture of the right great toe, evaluated as zero percent disabling; fracture of the right fifth metacarpal, evaluated as zero percent disabling; fracture of the third-to ninth ribs, evaluated as zero percent disabling; residuals of a laceration scar of the left ring finger, evaluated as zero percent disabling; a nasal fracture, evaluated as zero percent disabling; and a scar on the right buttock area and a scar on the right flank, evaluated as zero percent disabling. The combined evaluation was 80 percent. The veteran was further awarded special monthly compensation due to loss of a creative organ. The RO notified the veteran of the December 1989 decision by letter dated January 16, 1990, and advised her of her appellate rights. The RO included VA Form 21-6782, which gave further information pertinent to the veteran's benefits, including the following paragraph: "If your service-connected disabilities are seriously disabling, but are not solely of a psychiatric nature, and you are unable to secure and follow a substantially gainful occupation because of those disabilities, you may be entitled to receive benefits at a rate for total disability. If you wish to claim this benefit, you should contact the nearest VA office and complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability." The veteran did not appeal the December 1989 decision.In March 1990, the veteran underwent further VA examination. These examination reports reflect no complaints or statements by the veteran evidencing an inability to work or perform daily activities. An August 1990 special rating examination report noted that the veteran was a full-time student and hoped to eventually better herself and obtain a better job than she had in the past. In an October 1990 rating action, the RO adjusted the veteran's rating to 90 percent combined to reflect the bilateral factor. See 38 C.F.R. § 4.26 (2002). In a January 1991 rating action, the RO amended the veteran's rating to reflect service connection for a laceration to the left index finger and severance of service connection for a laceration of the left ring finger. On May 23, 1991, the RO received a statement from the veteran in which she reported additional symptomatology due to her service-connected disabilities. The RO reopened the veteran's claims accordingly. In June 1992, the RO received a statement from the veteran requesting "100% total and permanent disability based on unemployability."In a February 1993 rating action, the RO granted entitlement to TDIU benefits effective from June 17, 1992. In a March 1998 rating action, the RO determined that an effective date of May 23, 1991 was warranted for the veteran's award of entitlement to TDIU benefits. Applicable law and 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 claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award based on a claim reopened after a final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(1)(ii); 3.400®. In cases involving a claim for an increased evaluation, the effective date may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); See Quarles v. Derwinski, 3 Vet. App. 129, 134-135 (1992).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. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim or application for benefits is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2002). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit 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 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. See 38 C.F.R. § 3.155. In the present case, the RO has awarded TDIU benefits effective from May 23, 1991. The veteran contends that such benefits should be effective from the date of her separation from service. The Board notes that the RO has already revised the effective date of TDIU benefits from June 17, 1992, the date of receipt of correspondence in which the veteran first clearly requested entitlement to such benefit, to May 23, 1991, the date of receipt of correspondence indicating additional disability. The RO has cited a change in the M21-1, Part VI, 7.52 (March 17, 1992), providing that if the rating board identified "potential entitlement," an application for TDIU benefits would be sent to the veteran, and indicated that the RO should have provided the veteran with a formal TDIU application at the time of its September 1991 rating decision. The Board does not dispute the RO's action in this regard, but notes that such adjudicative procedure change under the M21-1 was not in effect at the time of the RO's December 1989, October 1990, or January 1991 rating decisions. Furthermore, a January 2001 Board decision determined that the veteran had not raised a valid claim of clear and unmistakable error in RO decisions dated in December 1989, October 1990, or January 1991.Following a full review of the relevant evidence of record, the Board finds no objective evidence to show that the veteran submitted a claim, either formal or informal, for TDIU benefits prior to May 23, 1991. The Board finds no evidence of record that can be construed as an informal or implied claim for TDIU benefits prior to May 23, 1991. The Board notes that the medical evidence of record for the period prior to May 23, 1991 demonstrates that the veteran was attending college full-time and anticipated finding a job upon graduation. The relevant medical evidence further demonstrates that the veteran was taking care of her family at home. This medical evidence does not demonstrate or indicate in any way that the veteran was unable to maintain employment as a result of her service-connected disabilities. In fact, the August 1990 VA special rating examination report indicates that the veteran apparently believed herself to be employable as she reported hoping to find a better job than she had in the past.At her November 2000 hearing, the veteran's representative suggested that a TDIU should have been assigned under 38 C.F.R. § 4.28 (2002). Hearing transcript (T.), page 5. Under 38 C.F.R. § 4.28, prestabilization ratings of 50 or 100 percent may be assigned, in lieu of ratings assigned elsewhere, in the immediate post-discharge period. A prestabilization rating continues for the 12-month period following discharge from service, although a prestabilization rating may be changed to a regular schedular total rating, or one authorizing a greater benefit, at any time. A 50 percent prestabilization rating is for assignment when there is an unhealed or incompletely healed wounds or injuries with material impairment of employability unlikely. A 100 percent prestabilization rating is for assignment when there is an unstabilized condition with severe disability and substantially gainful employment is not feasible or advisable. As discussed above, the Board finds that based on the foregoing evidence, the probative evidence did not present an unstabilized condition with severe level of disability, precluding substantially gainful employment during the prestabilization period. When the veteran was examined in 1989, there were no findings that substantially gainful employment was precluded. At her hearing in 2000, the veteran submitted an award letter from the Social Security Administration (SSA) that shows she was awarded SSA disability benefits based on a determination that she became disabled in August 1988. This recently received document was not of record at the time of the veteran's initial compensation claim, in which a TDIU was not being sought, and may also not be considered constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is held to have constructive notice of documents generated by VA, even if the documents have not been made part of the record in a claim for benefits). In summary, the Board finds no evidence or correspondence from the veteran (or even reference to any correspondence) that may be accepted as a formal or informal claim for TDIU benefits prior to May 23, 1991. The available evidence does not show that the veteran mentioned unemployability with an intent to pursue compensation benefits based on TDIU prior to May 23, 1991. Furthermore, the medical evidence of record relevant to the period prior to May 23, 1991 does not demonstrate any medical findings of unemployability. Thus, because the veteran's claim for TDIU benefits was received on May 23, 1991, the effective date for the grant of TDIU benefits cannot be earlier than May 23, 1991. Accordingly, the veteran's claim of entitlement to an earlier effective date must be denied. ORDERThe appeal is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' AppealsIMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form:? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel.? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.