Citation Nr: 1322366 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-42 251A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than March 16, 2004, for the grant of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to May 1977. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2006 RO rating decision that, in pertinent part, assigned an effective date of February 3, 2006, for the award of TDIU benefits. The Veteran timely appealed for an earlier effective date. In September 2009, the Board remanded the matter for issuance of a statement of the case. The RO sent a statement of the case to the Veteran in November 2009. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2011 decision, the Board granted an earlier effective date of March 16, 2004 for entitlement to TDIU based upon the date the Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder (later granted as depressive disorder, effective March 16, 2004). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran's attorney and VA's General Counsel filed a Joint Motion requesting that the Court vacate that part of the Board's decision that denied an effective date earlier than March 16, 2004. The Joint Motion also requested that the Court remand the case to the Board for re-adjudication in accordance with the directives of the Joint Motion. The Court granted the Joint Motion for remand in December 2012 and returned the case to the Board. The issue of entitlement to compensation under 38 C.F.R. § 1151 for impaired health due to a prostate operation in October 1999 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a January 1979 decision, the Board denied entitlement to service connection for anxiety neurosis and for a back disability. 2. In June 1998, the Veteran filed to reopen his claims of entitlement to service connection for a back disability and an anxiety disability. 3. In April 2002, the RO granted service connection for low back strain and assigned an initial 40 percent disability effective April 13, 1997; the Veteran expressed satisfaction with the assigned rating, and did not submit a notice of disagreement within one year of the notice of that decision. 4. In a December 2005 rating decision, the RO granted entitlement to service connection for depressive disorder, with an initial evaluation of 30 percent, effective March 16, 2004 (date of the claim). The Veteran did not appeal the effective date assigned within one year of the decision date. 5. In a December 2006 rating decision, the RO granted TDIU, effective February 3, 2006 (the date a formal claim for TDIU was received). 6. In October 2011, the Board provided an earlier effective date of March 16, 2004 for the grant of entitlement to TDIU. The TDIU effective date is based upon the effective date of the grant of entitlement to service connection for depressive disorder. 7. Prior to March 16, 2004, the Veteran did not meet the preliminary schedular criteria for TDIU, and the credible evidence of record does not show that his service-connected disability rendered him unable to engage in substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier than March 16, 2004, for the award of TDIU benefits, are not met. 38 U.S.C.A. §§ 5101, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.157, 3.341, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Through an April 2006 letter, the RO notified the Veteran of elements of an award of TDIU benefits, and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. In the April 2006 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran specifically waived RO consideration of the additional evidence submitted in September 2011, and did not introduce new evidence after the December 2012 Court remand; hence, no re-adjudication followed and no supplemental statement of the case (SSOC) was issued. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records. The Social Security Administration has advised that the only medical records in their file were copies of VA treatment records. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). Laws and Regulations TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. The Veteran has been granted service connection for lumbar degenerative disc disease (rated 40 percent since April 13, 1997), depressive disorder secondary to lumbar degenerative disc disease (rated 30 percent from March, 16, 2004), and right lower extremity radiculopathy associated with lumbar degenerative disc disease (rated 10 percent since March 16, 2004). The Veteran is also service connected for cervical spine degenerative disc disease; however, the effective date is in 2006 and so is not applicable to this claim. Disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25. Using this table, the combined rating is 70 percent from March 16, 2004, and 40 percent prior to March 16, 2004. While the Veteran meets the minimal schedular standards for a TDIU from March 16, 2004, he does not meet the standards prior to March 16, 2004. See 38 C.F.R. §§ 4.16(a); 4.25. However, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). Hence, consideration of whether the Veteran is, in fact, unemployable, is still necessary in this case. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The central inquiry is "whether [a] veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. At 363. Effective Dates Generally, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b); 38 C.F.R. § 3.400(b). The effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If it is factually ascertainable that an increase in disability had occurred within the one year immediately preceding the date of receipt of the claim, then the Veteran can receive this earlier effective date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under applicable laws and regulations, 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R.§ 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). In this case, a decision of the RO in December 2006 awarded TDIU benefits and assigned an effective date of February 3, 2006. The current appeal for an earlier effective date followed, and in October 2011, the Board granted an earlier effective date of March 16, 2004 for entitlement to TDIU. The issue remaining before the Board is entitlement to TDIU prior to March 16, 2004. 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. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). All filings by a claimant must be construed based on a liberal reading. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "[i]n direct appeals, all filings must be read 'in a liberal manner' whether or not the veteran is represented"). Once a veteran submits evidence of a disability, makes a claim for the highest rating possible, and submits evidence of unemployability, an informal claim for TDIU is raised. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); 38 C.F.R. § 3.155. However, a claim for a TDIU may not be a freestanding claim, but may also be a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised (e.g., by filing a VA Form 21-8940) or "reasonably raised by the record," and the claim may be filed as a component of either the initial claim or as a claim for an increased rating for a service-connected disability. In 2009, the Court held that a claim of entitlement to a TDIU during adjudication of the issue of entitlement to service connection or during the appeal of the initial evaluation assigned, the issue is part of the underlying claim for an increased initial evaluation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Furthermore, according to 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. See Servello, 3 Vet. App. at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. Id. at (b)(2). Factual Background and Analysis By way of history, the Board denied entitlement to service connection for anxiety neurosis and a back condition in a January 1979 decision. That decision is final. Rating decisions in August 1980, November 1980, and May 1981 found that new and material evidence had not been provided to reopen claims of entitlement to service connection for a nervous condition or a back disability. In April 1998, the Veteran applied for pension benefits. In June 1998, he filed to reopen his claims of entitlement to service connection for a back disability and psychiatric disability. In October 1998, the RO again found that new and material evidence had not been submitted sufficient to reopen the claims. The Veteran appealed the decision to the Board. In January 2001, the Board remanded the claims for additional development. In April 2002, the RO granted entitlement to service connection for low back strain and provided an initial rating of 40 percent, effective April 13, 1997. In an April 2002 statement, the Veteran stated that "all issues have been resolved" and withdrew his request for a hearing before a member of the Board. In an April 2002 report of telephone contact with the Veteran's representative the VA representative noted that the Veteran appeared for his hearing, but that the hearing was canceled because the "Veteran reported satisfaction with the 40 percent evaluation for lumbar spine and the issue of secondary service connection for depression "will be raised as a new claim." In October 2002, the Veteran filed a claim of entitlement to service connection for depression, to include as secondary to his lumbar spine disability. In November 2002, the RO denied a claim of entitlement to service connection for schizoaffective disorder. The Veteran filed a notice of disagreement with the November 2002 rating decision, and in March 2003 the RO issued a Statement of the Case continuing the denial. The Veteran filed a VA Form 9 on March 16, 2004, outside the period of time in which the Veteran had to perfect his appeal and the AOJ treated the document as not timely. Hence, the November 2002 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In December 2005, the RO granted service connection and awarded a 30 percent disability rating for the Veteran's depressive disorder, effective from the date of claim on March 16, 2004. The Veteran did not appeal the effective date of March 16, 2004 for the grant of service connection for depressive disorder. The Board notes that the Court has barred appellants from seeking to disturb the finality of a prior rating decision by filing a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, the Veteran's claim of entitlement to an earlier effective date than March 16, 2004 for TDIU cannot be construed as a claim of entitlement to an effective date earlier than March 16, 2004 for the grant of service connection for a psychiatric disorder. As the effective date of the Veteran's grant of service connection for depression is not on appeal, the effective date of the TDIU cannot be based upon evidence of unemployability due to his psychiatric disorder. In a February 2006 rating decision, the Veteran was granted a separate 10 percent rating for right lower extremity radiculopathy, secondary to his lumbar spine disability, effective March 16, 2004. As a consequence of the decisions, the Veteran had a combined disability rating of 60 percent from March 16, 2004. As these disabilities are of common etiology, the Veteran also met the numerical criteria of 38 C.F.R. § 4.16(a). Within one year of notification of the December 2005 rating decision, the Veteran submitted a claim for TDIU benefits on February 3, 2006. In an October 2011 decision, the Board granted entitlement to TDIU, effective March 16, 2004. The Board noted that "since the claim for service connection for a depressive disorder was received in 2004-more than one year following separation from service, as a matter of law, the effective date can be no earlier than the date of receipt of the claim. 38 C.F.R. § 3.400(b). The same result is reached under the criteria for a claim to reopen, 38 C.F.R. § 3.400(r). Accordingly, the proper effective date can be no earlier than the date of receipt of the claim for service connection-that is, March 16, 2004." In the Joint Motion for Remand, the parties argued that the claim must be returned because the Board did not discuss the applicability of 38 C.F.R. § 4.16(b), which removes the schedular rating requirements in 38 C.F.R. § 4.16(a), and required the Board to "consider and discuss any evidence relevant to the issue of the Appellant's employability as a result of his service-connected disabilities prior to March 2004." Prior to March 16, 2004, the Veteran was singularly service connected for a lumbar spine disability, with a 40 percent rating. The Veteran did not appeal the initial rating of 40 percent or the effective date of the claim within one year, and the April 2002 rating decision became final. As the Veteran expressed that he was content with his lumbar spine rating, and that his issues had been resolved, as of April 2002, the Veteran had no claims on appeal from which a claim of entitlement to TDIU could stem. However, as the JMR instructs the Board to address a claim of an effective date earlier than March 16, 2004 for a grant of TDIU, the Board will address the Veteran's unemployability beginning with his grant of service connection for a lumbar spine disability. As he was not service connected for any disabilities prior to April 13, 1997, the Board will not address his employability prior to April 13, 1997. On his April 1998 pension claim, the Veteran stated that he was unemployed, and he indicated on the form that he had never been employed (he entered "not applicable" under employment, and "zero" for income under history of employment). Conversely, he noted that he was receiving Social Security Income. On his July 1998 VA examination, the Veteran indicated he was unemployed. His lumbar spine had a "modest" loss of range of motion. He was able to drive a car and help with chores. During his July 1998 mental health VA examination he reported a long history of alcohol abuse and treatment. He indicated he was last intoxicated in 1994 or 1995, and he last used cocaine and marijuana in 1983 or 1984. He reported his last full time employment was in 1989, and that he had not been working because he "could not find a job." His employment history was not discussed in his March 2001 VA examination. The receipt of ongoing VA treatment records in July 2002 included a spine treatment record that his pain had decreased by 50 percent because of the use of orthotics. Most of the psychiatric treatment records reviewed the Veteran's sleeping habits, his relationships with his wife and girlfriend, and his increased anxiety and depression regarding the sale of his bar. Notably, although the Veteran reported in 1998 that he had not worked since 1989, his psychiatric treatment records from 2001 indicated he was in the process of selling his bar, but that the bar had reopened. There is no indication in the treatment records when the Veteran purchased the bar, what he was involved in with the operation and management of the bar, or when/if the bar was finally sold. In the Joint Motion to Remand, the parties cited several treatment records contained in the claims file which they felt may be applicable to the Veteran's earlier effective date claim. The records include the September 2002 statement (received in October 2002) that it was unlikely that the Veteran would "be able to maintain employment or function well on a job with his coworkers or the general public." However, the full quote from the physician notes that the Veteran would be unemployable due to his "chronic mid-grade depression and lack of coping skills in dealing with stressful situations." Thus, in October 2002 the Veteran had a statement from a physician that his psychiatric disorder rendered him potentially unemployable; however, he was singularly service-connected for a lumbar spine disability at that time. Since the documents did not relate to a service-connected disability, it was not a claim or informal claim for TDIU. The September 2002 letter additionally noted that the Veteran was depressed due to dealing with problems with selling his business. There is again, however, no indication of when the business was sold, when it was bought, or information on the Veteran's general involvement with running the business. Equally important, the documents did not relate to a service-connected disability and did not remotely establish a claim for increase or TDIU. In April 2005, Dr. M.C. provided the VA with a list of the Veteran's health problems, which included cardiac abnormalities and chronic obstructive pulmonary disease (COPD). In January 2006, the Veteran provided a VA Form 21-8940, a formal claim for TDIU. He indicated he was last employed full time in November 1989 but that he became too disabled to work in January 2000. He indicated that his employment in 1989 was as a bartender. Prior to his work as a bartender, he indicated he had training as a tool and die maker and he had training in basic electronics. In February 2006, the Veteran provided a VA Form 21-4192, an employment information from "U.S. One, Inc." The form indicated the Veteran worked full time as a bartender from November 1989 to January 2000, but that he earned no income during this employment. He was also noted to have lost four months of employment due to his disability and that his employment was terminated due to his back pain. Oddly, the signature on the form is from a copy or fax (not in ink), but the form is filled out in ink in a different handwriting than the signature and date. We find the report of no income, yet working 40 hours a week to be incredulous. We find the form, based upon the information contained therein and how it was filed out and signed to be of essentially no probative value. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board does not find the Veteran's statements regarding his employment history to be credible. During a 1998 VA examination he indicated he had been unemployed since 1989; however, subsequent treatment records showed that he owned a bar until at least 2001. While the Veteran failed to provide any information on the ownership of this bar, a VA Form 21-4192 indicated he was a bartender from 1989 to January 2000. The Board can only assume, again because the Veteran failed to provide any information, that he owned the bar from 1989 to 2001. The VA Form 21-4192 also indicated that he made no money during his 12 years of bartending (or bar ownership), and that he had to stop working due to back pain. The Board notes that the form was signed prior to being filled out (as noted by the signature and date were of a Xeroxed fashion and the form was filled out in ink). As the information provided to the VA regarding his employment and business ownership has been vague and contradictory, the Board finds the information about his employment to not be credible. Prior to March 16, 2004, the Veteran was service connected for a lumbar spine disability, with an evaluation of 40 percent. There is scant other information regarding employment in the file and no information that shows a factor that the Veteran's case is within the intent of section 4.16(b). His lumbar spine disability included symptoms of pain and limitation of motion. Physicians' statements in the claims file have associated his psychiatric disorder with his unemployability. Additionally, while he has indicated he was unable to work beginning in 1989, the record reveals that he had some employment, and possibly owned and operated a business until 2001. The Board takes into account that the Veteran has some education (at least one year of college) and additional training in electronics and in tool and die making. In his 1998 VA examination he was able to complete activities of daily living, and in his 2001 VA examination he complained of pain in his feet with running. During his 2001 VA examination he had flexion to 90 degrees. It is difficult to determine his functional limitations, as during the 2001 examination he was noted to be a poor historian, and he was unable to describe his pain, or provide any complaints unless specifically elicited. As the evidence of record fails to show that the Veteran's service-connected lumbar spine disability rendered him unemployable prior to March 16, 2004, referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service is not warranted. In sum, the Veteran filed his formal claim for TDIU in January 2006. He filed a claim of entitlement to service connection for depressive disorder, which was subsequently granted, on March 16, 2004. Due to treatment provider statements that the Veteran's psychiatric disorder may render him unemployable, he was granted TDIU, effective March 16, 2004. The TDIU claim on appeal is "part and parcel" of his March 16, 2004 claim for depressive disorder. Prior to March 16, 2004, the Veteran was singularly service connected for a lumbar spine disability. The Veteran expressed that he was content with the 40 percent rating for his lumbar spine disability, and that his issues had been resolved in an April 2002 statement. The Veteran's statements that he was unemployed from April 13, 1997 to March 15, 2004 are not credible. In fact, the evidence of record shows that the Veteran was employed as a bartender, or possibly owned and operated a bar, from 1989 to 2001. The only medical record indicating the Veteran was unemployable is from 2002, and relates his unemployability to his psychiatric disorder. For all the foregoing reasons, the claim for a TDIU prior to March 16, 2004, to include on an extraschedular basis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes that the assignement of an effective date under section 4.16(b) is controlled by 38 U.S.C.A. § 5110(b)(2). Prior to March 16, 2004, we conclude that there was no pending claim or informal claim for TDIU under any theory. If we assume that the appellant became unemployable by reason of service-connected disability in 2000 or 2001, such fact would demand a denial of the benefit because the appellant did not file a claim within 1 year of the happening of the event. 38 U.S.C.A. § 5110(b)(2). In essence, section 5110(b) provides for an earlier effective date if a claim is received within one year of the happening of the event (ascertainable that an increase in disability had occurred). In regard to the sole service-connected disability prior to March 16, 2004, there is no probative evidence of unemployability or an increase in severity within the prior one year. In essence, the Joint Motion appears to demand adjudication of a freestanding claim for TDIU. ORDER Entitlement to an effective date earlier than March 16, 2004, for the grant of a TDIU, to include on an extraschedular basis, is denied ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs