Citation Nr: 0813208	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  06-15 850	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to an effective date earlier than January 21, 
2004, for entitlement to a total disability rating based on 
individual employability (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

N. Kroes, Associate Counsel


INTRODUCTION

The veteran served on active duty from July 1965 to July 
1967.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from the Houston, Texas, Department of Veterans 
Affairs (VA) Regional Office (RO).

In March 2008, the veteran testified at a personal hearing 
before the undersigned Veterans Law Judge at the RO.  A 
transcript of that hearing has been associated with the 
claims file. 


FINDINGS OF FACT

1.  January 1983 and November 1991 rating decisions, which in 
part essentially denied evaluations in excess of 10 percent 
for residuals of left frontal temporal craniopathy and 
ligation of aneurysm with impairment of third cranial nerve, 
were supportable by the facts and law extant at the time of 
the decisions.  The RO clearly considered headaches as part 
of residuals of left frontal temporal craniopathy and 
ligation of aneurysm with impairment of third cranial nerve 
in reaching these decisions.

2.  The veteran filed the claim for which this appeal stems 
on January 21, 2004.  At that time, the veteran claimed that 
vision difficulties, vertigo, constant headaches, memory 
loss, tinnitus, major depressive disorder and residuals of 
right shoulder injury were directly related to his active 
duty head trauma.

3.  In October 2004, the RO issued a rating decision granting 
service connection for constant headaches, evaluated as 
50 percent disabling effective January 21, 2004; major 
depressive disorder with minor cognitive defects, evaluated 
as 30 percent disabling effective January 21, 2004; and 
recurrent vestibulopathy, evaluated as 10 percent disabling 
effective January 21, 2004; granting a TDIU and Dependents' 
Educational Assistance (DEA), effective January 21, 2004; 
continuing a 10 percent evaluation for residuals of left 
frontal temporal craniopathy and ligation of aneurysm with 
impairment of third cranial nerve; and denying service 
connection for right shoulder injury and tinnitus.

4.  The veteran did not meet the schedular criteria for a 
TDIU prior to January 21, 2004, and no informal claim, formal 
claim, or written intent to file a claim for a TDIU was 
received from November 8, 1991 (the date the veteran's last 
claim for service connection and an increase in service-
connected disabilities was denied) and January 21, 2004 (the 
date of the current claim). 


CONCLUSIONS OF LAW

1.  January 1983 and November 1991 rating decisions, which 
denied evaluations in excess of 10 percent for residuals of 
left frontal temporal craniopathy and ligation of aneurysm 
with impairment of third cranial nerve, did not contain clear 
and unmistakable error.  38 U.S.C.A. § 5109A (West 2002); 38 
C.F.R. § 3.105(a) (2007).

2.  The criteria for an effective date earlier than January 
21, 2004, for the award of a TDIU have not been met.  38 
U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.155, 3.157, 3.400, 3.340, 3.341, 4.16 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act (VCAA) (codified at 
38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 
& Supp. 2007)) imposes obligations on VA in terms of its duty 
to notify and assist claimants.  When VA receives a complete 
or substantially complete application for benefits, it is 
required to notify the claimant and his representative, if 
any, of any information and medical or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In 
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the 
United States Court of Appeals for Veterans Claims (Court) 
held that VA must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) request that the 
claimant provide any evidence in his possession that pertains 
to the claim.  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Id.  

As to the part of the veteran's claim wherein he asserts that 
there was clear and unmistakable error in January 1983 and 
November 1991 rating decisions, the Court has determined that 
the provisions of the VCAA are not applicable to a claim of 
clear and unmistakable error.  Livesay v. Principi, 15 Vet. 
App. 165 (en banc) (2001); Parker v. Principi, 15 Vet. App. 
407 (2002).  Thus, the Board will not address whether the 
VCAA has been met as to those claims.

Considering the veteran's claim for an earlier effective 
date, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the AOJ.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the AOJ) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VCAA notification followed by readjudication 
of the claim, such as an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial AOJ decision by way of a letter 
sent to the veteran in September 2005 that fully addressed 
all four notice elements.  The letter informed the veteran of 
what evidence was required to substantiate the claim and of 
his and VA's respective duties for obtaining evidence.  The 
veteran was also asked to submit evidence and/or information 
in his possession to the AOJ.  Although the notice letter was 
not sent before the initial AOJ decision in this matter, the 
Board finds that this error was not prejudicial to the 
veteran because the actions taken by VA after providing the 
notice have essentially cured the error in the timing of 
notice.  Not only has the veteran been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claim and given ample time to respond, but the AOJ also 
readjudicated the case by way of a statement of the case 
issued in March 2006 after the notice was provided.  For 
these reasons, it is not prejudicial to the veteran for the 
Board to proceed to finally decide this appeal as the timing 
error did not affect the essential fairness of the 
adjudication.  

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements apply to all five 
elements of a service connection claim.  Those five elements 
include: (1) veteran status; (2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) degree of disability; and (5) effective date 
of the disability.  The first 4 elements are not in dispute 
(the veteran is rated as totally disabled).  The veteran was 
given information about element (5) in the September 2005 
letter (after he appealed the effective date assigned). 

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefit sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with 
the current appeal, VA has of record VA treatment records, 
Social Security Administration records (showing employment 
earnings), hearing transcripts, photographs, and service 
treatment records.  There is no indication that any other 
treatment records exist that should be requested, or that any 
pertinent evidence has not been received.  A VA examination 
is not necessary for this claim.   

For the foregoing reasons, the Board therefore finds that VA 
has satisfied its duty to notify (each of the four content 
requirements) and the duty to assist pursuant to the VCAA.  
See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; 
Quartuccio, supra; Dingess, supra.  Any error in the sequence 
of events or content of the notice is not shown to have any 
effect on the case or to cause injury to the claimant.  Thus, 
any such error is harmless and does not prohibit 
consideration of this matter on the merits.  See Dingess, 
supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 
(Fed. Cir. 1998).

II. Clear and Unmistakable Error

On a cover sheet submitted with evidence in September 2005, 
the veteran's representative asserted that there was clear 
and unmistakable error (CUE) in the "first rating."  At the 
veteran's personal hearing before the undersigned, he and his 
representative clarified that they were contending that there 
was CUE in rating decisions issued in January 1983 and 
November 1991.  It was alleged that his complaints of 
headaches were not considered in these decisions and that if 
these complaints were considered the veteran would have been 
awarded a TDIU earlier than January 21, 2004.  

The Board notes that at the veteran's personal hearing he 
testified that he worked full-time until January 2000.  This 
is reflected in employment earnings reported by the Social 
Security Administration as well.  The veteran also testified 
that in 1991 when he complained about his headaches he was 
told that he could file a claim but that at that point he had 
no case.  He reported that he was told this by his 
representative.  There is no indication that he was ever told 
this by a VA employee.       

Section 3.105(a) of Title 38, Code of Federal Regulations, 
provides in pertinent part: "[P]revious determinations which 
are final and binding . . . will be accepted as correct in 
the absence of clear and unmistakable error.  Where evidence 
establishes such error, the prior decision will be reversed 
or amended."  See 38 U.S.C.A. § 5109A (West 2002); Cook v. 
Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc), cert. 
denied, 539 U.S. 926 (2003).  For clear and unmistakable 
error to exist either (1) the correct facts in the record 
were not before the adjudicator or (2) the statutory or 
regulatory provisions extant at the time were incorrectly 
applied.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994).  
In addition, "the error must be 'undebatable' and of the 
sort 'which, had it not been made, would have manifestly 
changed the outcome at the time it was made.'"  Id. (quoting 
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en 
banc)); see Busto v. West, 179 F.3d 1378, 1380 (Fed. Cir. 
1999) (expressly adopting "manifestly changed the outcome" 
language of Russell, supra).  "In order for there to be a 
valid claim of clear and unmistakable error . . . [t]he 
claimant, in short, must assert more than a disagreement as 
to how the facts were weighed or evaluated."  Russell, 
3 Vet. App. at 313.  That is because, "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).

The Board must emphasize that the Court has consistently 
stressed the rigorous nature of the concept of clear and 
unmistakable.  Id. ("It must always be remembered that 
[clear and unmistakable error] is a very specific and rare 
kind of 'error'" and, there is a "presumption of validity 
to otherwise final decisions" and the "presumption is even 
stronger" when such cases are collaterally attacked on the 
basis of error). 

An August 1981 rating decision awarded service connection for 
residuals of left frontal temporal craniotomy with ligation 
of aneurysm and assigned a 10 percent disability evaluation 
under 38 C.F.R. § 4.124a, DC 8009 (1981).

Relevant Law in 1983 and 1991

Under 38 C.F.R. § 4.21 (1982 & 1991), it stated the 
following: 

In view of the number of atypical instances it is 
not expected, especially with the more fully 
described grades of disabilities, that all cases 
will show all the findings specified.  Findings 
sufficiently characteristic to identify the disease 
and the disability therefrom, and above all, 
coordination of rating with impairment of function 
will, however, be expected in all instances.

Under 38 C.F.R. § 4.124a (1982 & 1991), it stated the 
following, in relevant parts:

Schedule of ratings-neurological conditions and 
convulsive disorders.  

[With the exceptions noted, disability from the 
following diseases and their residuals may be rated 
from 10 percent to 100 percent in proportion to the 
impairment of motor, sensory, or mental function.  
Consider especially psychotic manifestations, 
complete or partial loss of use of one or more 
extremities, speech disturbances, impairment of 
vision, disturbances of gait, tremors, visceral 
manifestations, etc., referring to the appropriate 
bodily system of the schedule...]

8009 Brain, vessels, hemorrhage from:
Rate the vascular condition under Codes 8007 
through 8009, for 6 
months......................................
............................100
        Rate residuals, thereafter, 
minimum..................................10

8100 Migraine:
With very frequent completely prostrating and 
prolonged attacks productive of severe 
economic inadaptability....50
With characteristic prostrating attacks 
occurring on an average once a month over 
last several month.......................30
With characteristic prostrating attacks 
averaging one in 2 months over the last 
several months........................10
With less frequent attacks........................................0 

1. January 1983 rating decision

Initially, the Board notes that effective February 1, 1990, 
Title 38 U.S.C. § 5104(b) required ROs to specify, in each 
rating decision, the evidence considered and the reasons for 
the disposition; before that time, rating decisions generally 
lacked such specificity.  See 38 U.S.C.A. § 5104(b) (West 
2002); Crippen v. Brown, 9 Vet. App. 412, 420 (1996).  Thus, 
"[s]ilence in a final RO decision made before February 1990 
cannot be taken as showing a failure to consider evidence of 
record."  Crippen, 9 Vet. App. at 421.

In August 1982, the veteran's representative alleged CUE in 
the August 1981 rating decision that granted service 
connection for residuals of left frontal temporal craniotomy 
with ligation of aneurysm.  The veteran contended that a burr 
hole in the left frontal area and partial paralysis of the 
third cranial nerve were not considered in assigning the 10 
percent rating for the veteran's disability.  In the August 
1982 letter, the veteran's representative also noted that 
treatment records showed, among other things, headaches.  

A January 1983 rating decision found CUE in the August 1981 
rating decision because it failed to consider skull loss for 
service connection and evaluation.  The veteran's disability 
was then assigned 2 separate ratings - a 30 percent rating 
for skull loss left frontal area under DC 5296, and a 
10 percent evaluation for residuals of left frontal temporal 
craniotomy and ligation of aneurysm, with impairment third 
cranial nerve, under DC 8009.  The January 1983 decision 
noted that third cranial nerve impairment was considered as 
part of the residuals of craniotomy with ligation of 
aneurysm, and that the current examination showed only 
minimal residuals.  The veteran is essentially arguing that 
headaches were shown at that time but not considered as part 
of the rating for residuals of craniotomy.   

The examination report from the veteran's most current VA 
examination at that time, from October 1982, showed that he 
reported that a year and a half prior he started to 
experience headaches at the craniotomy site in the left 
frontal temporal area.  He stated that he had these headaches 
almost everyday and that he was taking Motrin which he felt 
relieved the headaches pretty well.  It was noted that the 
headaches apparently only lasted for a short time and the 
veteran did not have any associated symptomatology with the 
headaches.  The examiner's diagnosis noted that the veteran 
initially had some difficulty with the third cranial nerve 
and that there was still some residual as manifest by a 
slightly larger pupil on the right.  The examiner also stated 
that the veteran otherwise had made a good recovery.  

The Board has carefully reviewed the evidence of record at 
the time of the January 1983 rating decision and the law 
extant at that time and concludes that the application of the 
law to the facts in this case is against a finding that a 
clear and unmistakable error was committed by the RO in the 
January 1983 rating decision.  While the RO did not mention 
headaches in the January 1983 rating decision (which cannot 
be taken as showing a failure to consider evidence of record, 
see Crippen, 9 Vet. App. at 421), it did mention that the 
"current exam[ination]" showed "only minimal residuals."  
It is clear that the October 1982 VA examination report, 
which detailed the veteran's headache complaints but still 
noted that in the examiner's opinion the veteran had made a 
good recovery other than having a slightly larger pupil on 
the right, was considered by the RO at that time.  Further 
discussion as to whether the RO improperly weighed and 
evaluated the evidence is unnecessary as such contentions can 
never rise to the stringent definition of CUE.  See Fugo, 
6 Vet. App. at 44; see also 38 C.F.R. § 20.1403(d)(3) (2007).      

2. November 1991 rating decision

A November 1991 rating decision denied service connection for 
a left ear laceration and denied increased ratings for skull 
loss of the left frontal area (continued as 30 percent 
disabling) and residuals of left frontal temporal craniopathy 
and ligation of aneurysm with impairment of third cranial 
nerve (continued as 10 percent disabling).  In that rating 
decision, the RO specifically stated that "[r]esiduals of 
aneurysm shows [subjective] complaints of blurred and double 
vision and headaches with normal neurological examination, 
therefore current 10 percent evaluation will continue."   

The Board has carefully reviewed the evidence of record at 
the time of the November 1991 rating decision and the law 
extant at that time and concludes that the application of the 
law to the facts in this case is against a finding that a 
clear and unmistakable error was committed by the RO in the 
November 1991 rating decision.  

The veteran's complaints of headaches are discussed in the 
November 1991 rating decision and were clearly considered.  
The veteran is essentially arguing that the evidence was 
improperly evaluated and that his headaches were worse than 
reflected by the rating assigned.  Contentions that the RO 
improperly weighed and evaluated the evidence can never rise 
to the stringent definition of CUE.  See Fugo, 6 Vet. App. at 
44; see also 38 C.F.R. § 20.1403(d)(3).    

III. Earlier Effective Date

A TDIU was awarded to the veteran as of January 21, 2004.  
The veteran asserts that date should be earlier.  

The assignment of effective dates of awards is generally 
governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Unless 
specifically provided otherwise, the effective date of an 
award based on a claim for increase (which includes a claim 
for individual unemployability) shall be fixed in accordance 
with the facts found, but shall not be earlier than the date 
of receipt of application therefor.  38 U.S.C.A. § 5110(a); 
see 38 C.F.R. § 3.400.  An effective date for a claim for 
increase may also be granted prior to the date of claim if it 
is factually ascertainable that an increase in disability had 
occurred within one year from the date of claim.  38 U.S.C.A. 
§ 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. 
Brown, 10 Vet. App. 125, 126 (1997).

Additionally, under 38 C.F.R. § 3.155(a) (2007), the veteran 
or a representative of the veteran can file an informal claim 
by communicating an intent to apply for one or more VA 
benefits.  The benefit sought must be identified, see Stewart 
v. Brown, 10 Vet. App. 15, 18 (1997), but need not be 
specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 
(1992).  See id.  Under 38 C.F.R. § 3.157(b), once a claim 
for compensation has been allowed, receipt of a VA outpatient 
or hospital examination or admission to a VA hospital will be 
accepted as an informal claim for increased benefits.  The 
date on the VA outpatient or hospital examination will be 
accepted as the date of claim.  Id.

In cases where the schedular rating is less than 100 percent, 
a total disability rating may be assigned when the individual 
is unable to secure or follow a substantially gainful 
occupation as the result of service-connected disability, 
without regard to advancing age.  38 C.F.R. §§ 3.340, 3.341, 
4.16.  Total disability ratings for compensation may be 
assigned 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).  
Disabilities resulting from common etiology or a single 
accident will be considered as one disability.  Id.

When an RO is considering a rating increase claim from a 
claimant whose schedular rating meets the minimum criteria of 
section 4.16(a) and there is evidence of current service-
connected unemployability in the claimant's claims file or 
under VA control, evaluation of that rating increase must 
also include an evaluation of a reasonably raised claim for a 
total rating based on individual unemployability, and VA is 
required to adjudicate that claim.  Norris v. West, 12 Vet. 
App. 413, 418 (1999); see also Roberson v. Principi, 251 F.3d 
1378, 1384 (Fed. Cir. 2001) (Once veteran submits evidence of 
medical disability and additionally submits evidence of 
unemployability, VA must consider total rating for 
compensation based upon individual unemployability).

A brief description of the facts follows.  The veteran was 
awarded service connection for residuals of left frontal 
temporal craniotomy with ligation of aneurysm by an August 
1981 rating decision.  Subsequently, a January 1983 rating 
decision found CUE in the August 1981 rating decision and 
awarded a 30 percent evaluation for skull loss of left 
frontal area and a 10 percent evaluation for residuals of 
left frontal temporal craniotomy and ligation of aneurysm, 
with impairment third cranial nerve, both effective May 1981.  
The veteran's combined disability evaluation was 40 percent.  
The veteran later filed a claim for an increase in his 
disability evaluations and a claim for service connection for 
a left ear laceration.  These claims were denied by a 
November 1991 rating decision. 

The veteran filed the claim for which this appeal stems on 
January 21, 2004.  At that time, the veteran claimed that 
vision difficulties, vertigo, constant headaches, memory 
loss, tinnitus, major depressive disorder and residuals of 
right shoulder injury were directly related to his active 
duty head trauma.

In October 2004, the RO issued a rating decision granting 
service connection for constant headaches, evaluated as 
50 percent disabling effective January 21, 2004; major 
depressive disorder with minor cognitive defects, evaluated 
as 30 percent disabling effective January 21, 2004; and 
recurrent vestibulopathy, evaluated as 10 percent disabling 
effective January 21, 2004; granting a TDIU and DEA, 
effective January 21, 2004; continuing a 10 percent 
evaluation for residuals of left frontal temporal craniopathy 
and ligation of aneurysm with impairment of third cranial 
nerve; and denying service connection for right shoulder 
injury and tinnitus.  The veteran perfected an appeal as to 
the proper effective date for the grant of a TDIU.  

A VA physician note from September 4, 2003 shows that the 
veteran was examined on that date in part for his headaches, 
which as explained above, were rated at that time as part of 
his residuals of left frontal temporal craniopathy and 
ligation of aneurysm with impairment of third cranial nerve.  
This examination report could be seen as an informal claim 
for an increase for his residuals of left frontal temporal 
craniopathy and ligation of aneurysm with impairment of third 
cranial nerve.  See 38 C.F.R. § 3.157.  The note does not 
show any report by the veteran, or finding by the physician, 
that he was unemployable due to his service-connected 
disabilities.  Additionally, at that time the veteran's 
combined disability evaluation was only 40 percent and 
evidence showing current service-connected unemployability 
was not in the veteran's claims file or under VA control.  
Such evidence would be obtained later.  Accordingly, at that 
time there was no need for the RO to consider a TDIU.  

The veteran's claims file does not contain any informal 
claim, formal claim, or written intent to file a claim for a 
TDIU from November 8, 1991 (the date the veteran's last claim 
for service connection and an increase in service-connected 
disabilities was denied) and the current effective date 
assigned, January 21, 2004 (the date of the current claim).  
The Board notes that at the veteran's personal hearing it was 
conceded that he had not filed a claim for a TDIU prior to 
January 21, 2004.

The veteran was eventually granted a separate 50 percent 
evaluation for constant headaches and awarded a TDIU based in 
part on this evaluation.  The 50 percent evaluation for 
constant headaches was assigned an effective date of January 
21, 2004, as were the other disability evaluations assigned.  
The veteran did not appeal the effective dates assigned for 
any of these disabilities.  Accordingly, the veteran did not 
meet the schedular requirements for a TDIU prior to January 
21, 2004, as his combined disability evaluation prior to that 
date was only 40 percent.  See 38 C.F.R. § 4.16(a).  As a 
result, the Board is not able to award the veteran a TDIU 
prior to January 21, 2004, as he did not meet the schedular 
criteria for a TDIU prior to that date.  See 38 C.F.R. 
§ 4.16(a).

The veteran asserts that he stopped working full-time in 
January 2000.  Social Security Administration records showing 
employment earnings support this assertion.  At the veteran's 
personal hearing he testified that he had to stop working 
because of his headaches.  

In determining the appropriate effective date for the claim 
for increase, VA must also consider whether there is evidence 
that an increase in disability occurred within one year 
preceding the date of claim that would be sufficient to 
warrant an effective date earlier than the date of claim.  
See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); 
Hazan v. Gober, 10 Vet. App. 511, 518 (1997).  In this case, 
the veteran's claim was filed more than one year after the 
date he alleges he became too disabled to work.  The Court 
and VA's General Counsel have interpreted the provisions 
under 38 U.S.C.A. § 5110(b)(2) as meaning that if the 
increase occurred (which includes individual unemployability) 
more than one year prior to the claim, the increase is 
effective the date of claim.  Harper v. Brown, 10 Vet. App. 
125 (1997); VAOPGCPREC 12-98 (1998).  Assuming that the 
veteran was unemployable due to service-connected disability 
or disabilities as of January 2000, this date is more than 
one year prior to the date of the veteran's claim and the 
appropriate effective date is therefore the date of claim-
here, January 21, 2004.  See 38 U.S.C.A. § 5110(a) and (b).  

For the above reasons, the Board finds that an effective date 
earlier than January 21, 2004, for the award of a TDIU cannot 
be granted.  The benefit-of-the-doubt rule is not for 
application.  See Gilbert v. Derwinski, 1 Vet. App. 49 
(1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007).


ORDER

Entitlement to an effective date earlier than January 21, 
2004, for entitlement to a TDIU is denied.  




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs