Citation Nr: 1315655	
Decision Date: 05/13/13    Archive Date: 05/15/13

DOCKET NO.  10-47 482	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an effective date earlier than March 12, 2007, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). 


REPRESENTATION

Veteran represented by:	Calvin Hansen, Esq.


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel





INTRODUCTION

The Veteran served on active duty from November 1969 to June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system.


FINDING OF FACT

Service connection was not in effect for any disability prior to March 12, 2007. 


CONCLUSION OF LAW

The criteria for an effective date earlier than March 12, 2007, for the award of a TDIU, have not been met.  38 U.S.C.A. § 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).   

Although the Veteran perfected a timely appeal challenging the RO's assignment of March 12, 2007, as the effective date for his TDIU award, prior to this date he had not established entitlement to service connection for any disability.  

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  A claim for a TDIU is a claim for an increased rating.  Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000).  

The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C.A. § 5110(a).  This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).  

A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities.  38 C.F.R. § 4.16(a).  Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000).  

Here, the record shows that the Veteran was granted entitlement to service connection for dysthymic disorder in a November 2008 rating decision with an assigned disability rating of 30 percent effective date of March 12, 2007.  The assigned disability rating was subsequently increased to 70 percent effective March 12, 2007 in a June 2010 Board decision.  This is the only disability for which the Veteran is service connected.  The Board notes that the Veteran has not appealed the effective date of his dysthymic disorder.  Crucially, prior to establishing entitlement to service connection for dysthymic disorder effective March 12, 2007, the Veteran had not been granted service connection for any disability.  Pursuant to the applicable law and regulations, VA may only award a TDIU on the basis of occupational impairment attributable to service-connected disabilities.  See 38 C.F.R. § 4.16.  Thus, because the undisputed facts show that the Veteran has not established entitlement to service connection for any disability prior to March 12, 2007, there is no entitlement under the law to the benefit sought.  Accordingly, his claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet App 426 (1994); 38 C.F.R. § 4.16.


ORDER

Entitlement to an effective date prior to March 12, 2007, for the award of a TDIU is denied. 



____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs