Citation Nr: 1317417 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-39 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date earlier than October 21, 2003 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that granted the Veteran's claim for a TDIU and assigned an effective date of May 21, 2008. A subsequent September 2010 rating decision from the Providence, Rhode Island RO granted an earlier effective date of October 21, 2003. On his August 2009 Substantive Appeal, the Veteran requested the opportunity to testify before a member of the Board in a Travel Board hearing. The Veteran was scheduled for such a hearing in May 2011. The Veteran failed to report for his scheduled hearing, and he has not provided good cause as to why his hearing should be rescheduled. His hearing request is considered withdrawn. FINDINGS OF FACT 1. The Veteran filed a claim for a TDIU on October 11, 2002. 2. Prior to October 21, 2003, the Veteran was service-connected for four disabilities (degenerative disc disease of the lumbar spine, residuals of a fracture of the right tibia and fibula, radiculopathy of the right lower extremity, and bilateral hearing loss) and had a combined rating of 50 percent. 3. It is factually ascertainable that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of August 28, 2002. CONCLUSION OF LAW The criteria for an effective date of August 28, 2002 for the award of a TDIU have been met. 38 U.S.C.A. §§ 5110, 5101 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Earlier Effective Date for TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The effective date for an award of increased disability compensation 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, date of receipt of claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and 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. 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. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The Veteran filed his claim for a TDIU on October 11, 2002. As of that date, the Veteran was service-connected for four disabilities: degenerative disc disease of the lumbar spine, rated as 40 percent disabling; residuals of a fracture of the right tibia and fibula, rated as 10 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. The Veteran had a combined rating at that time of 50 percent. For the period in question here, the Veteran did not meet the schedular criteria for a TDIU. However, when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU rating may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. § 4.16(b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The RO has already submitted the claim for such consideration. In a December 2010 determination, the Director concluded that entitlement to a TDIU on an extra-schedular basis was not warranted. Despite the Director's determination, the Board may still grant an earlier effective date for a TDIU if it finds that the Veteran was unable to work on account of his service-connected disabilities prior to the currently assigned effective date. Such evidence is present here. The Veteran underwent a VA spine examination in August 2002, two months before his claim for a TDIU. The examiner found that the Veteran moved very stiffly, could not toe walk and could barely heel walk, could not bend over to touch his toes, and could not squat at all. His range of motion was severely limited. The examiner noted that the Veteran "is unable to bend to try to touch his toes at all and is severely discomforted. He is able to walk but does so slowly and painfully." A January 2003 application for handicapped parking noted that the Veteran suffered from degenerative disc disease, and that he was unable to walk further than 75 feet with rest and 100 feet without rest. This application also noted that the Veteran could not walk without the use of a cane. A May 2004 VA examination also found that the Veteran's range of motion was severely limited. The examiner specifically stated that "I do not see this Veteran being able to perform even sedentary employment due to the severity of his range of motion limitations. Thus, I would say the Veteran would be unable to secure or maintain gainful employment secondary to his back condition." It is clear that the Veteran met the criteria for an extraschedular TDIU prior to the current effective date assigned. Indeed, it is factually ascertainable that the Veteran met the schedular criteria for a TDIU on the August 28, 2002 date of his VA examination, a date within a year of his October 2002 claim. Thus, an effective date of August 28, 2002 for the award of a TDIU is warranted. ORDER Entitlement to an effective date of August 28, 2002 for the award of a total disability rating based on individual unemployability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs