Citation Nr: 1327206 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-22 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an earlier effective date than May 6, 2009, for a grant of a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., which granted, in pertinent part, the Veteran's claim of entitlement to a TDIU effective May 6, 2009. The Veteran disagreed with this decision in February 2010, seeking an earlier effective date than May 6, 2009, for the grant of a TDIU. Because the Veteran lives within the jurisdiction of the VA Regional Office (RO) in New Orleans, Louisiana, that facility retains jurisdiction in this appeal. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to a TDIU was inferred from a report of VA genitourinary examination dated on July 10, 2000, in which he contended that his service-connected post-operative prostate cancer resulted in mild dribbling of urine and rendered him unemployable. 2. In a rating decision dated on July 25, 2000, and issued to the Veteran and his service representative on August 8, 2000, RO personnel stated, "Send Veteran VA Form 21-8940 for possible TDIU claim from examination" in July 2000. 3. The Veteran's formal TDIU claim was contained on a VA Form 21-8940, "Veteran's Application For Increased Compensation Based On Unemployability," dated on May 14, 2002, and date-stamped as received by the RO on May 17, 2002. 4. In a rating decision dated on July 24, 2003, and issued to the Veteran and his service representative on August 5, 2003, the RO denied the Veteran's claim of entitlement to a TDIU. 5. The record evidence shows that, on VA examination on May 6, 2009, the VA examiner opined that the Veteran's service-connected post-operative prostate cancer prevented him from securing and maintaining substantially gainful employment; this is the first factually ascertainable date that his service-connected disabilities prevented his employability. 6. In a rating decision dated on November 13, 2009, and issued to the Veteran and his service representative on November 20, 2009, the AMC granted, in pertinent part, the Veteran's claim of entitlement to a TDIU effective May 6, 2009. 7. In a letter dated on January 26, 2010, and date-stamped as received by the RO in Waco, Texas, on March 1, 2010, the Veteran disagreed with the effective date of May 6, 2009, for the grant of a TDIU. 8. Service connection is in effect for postoperative prostate cancer, evaluated as 100 percent disabling effective July 13, 1999, and as 60 percent disabling effective January 1, 2001, PTSD, evaluated as 50 percent disabling effective February 7, 2001, Peyronie's disease and impotence associated with postoperative prostate cancer, evaluated as 20 percent disabling effective August 26, 1999, and for bilateral tinnitus, evaluated as 10 percent disabling effective July 10, 2006; the Veteran's combined disability evaluation for compensation was 100 percent effective July 13, 1999, 70 percent effective January 1, 2001, 80 percent effective February 1, 2001, and 90 percent effective July 10, 2006. 9. Although the Veteran met the scheduler criteria for a TDIU effective July 13, 1999, the record evidence does not indicate that his service-connected disabilities, alone or in combination, prevented him from securing or maintaining substantially gainful employment until May 6, 2009; this is the earliest factually ascertainable date that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for assignment of an earlier effective date than May 6, 2009, for a grant of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's earlier effective date claim for a TDIU is a "downstream" element of the RO's grant of this claim in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In June 2003, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. This letter also noted other types of evidence the Veteran could submit in support of his claim. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in March 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support assigning an effective date earlier than May 6, 2009 for the grant of a TDIU. Thus, any failure by the RO to provide notice under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, notice as to what is required to substantiate the Veteran's TDIU claim was issued prior to the currently appealed rating decision. Because the Veteran was fully informed of the evidence needed to substantiate his claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the Veteran) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the Veteran's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claim on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Earlier Effective Date for a TDIU The Veteran contends that he is entitled to an earlier effective date than May 6, 2009, for a grant of a TDIU. He specifically contends that the appropriate effective date for a grant of a TDIU should be August 26, 1999, the date that he entered a VA Medical Center to undergo a radical prostatectomy which rendered him unable to continue working as a result of his service-connected postoperative prostate cancer. Law and Regulations In general, except as otherwise provided, the effective date of an evaluation an 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 the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. VA's General Counsel said this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether a Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date than May 6, 2009, for the grant of a TDIU. The Board notes initially that the Veteran's original informal claim of entitlement to a TDIU was inferred from a VA genitourinary examination report dated on July 11, 2000, when it was noted that "the [Veteran] claims that he is not able to work due to the mild dribbling of urine that needs two pads a day. His daily activities are not interfered with due to the mild [dribbling] of urine." There is a handwritten note stating "TDIU claim" along with an arrow pointing to this finding in the margins of the July 2000 VA genitourinary examination report. The RO properly interpreted this examination finding as an informal TDIU claim. There is a "NOTE" in a rating decision dated on July 25, 2000, and issued to the Veteran and his service representative on August 8, 2000, in which RO personnel stated, "Send Veteran VA Form 21-8940 for possible TDIU claim from examination" in July 2000. (The Board notes parenthetically that, in the August 2000 rating decision, the RO proposed to reduce the disability rating for the Veteran's service-connected postoperative prostate cancer from 100 percent to 40 percent. This proposed reduction was implemented in a rating decision promulgated in October 2000, reducing the Veteran's overall combined disability evaluation for compensation to 40 percent effective January 1, 2001.) In a rating decision dated on February 13, 2001, and issued to the Veteran and his service representative on February 28, 2001, the RO assigned an earlier effective date of July 13, 1999, for a 100 percent rating for the Veteran's service-connected postoperative prostate cancer. The RO noted in this rating decision that the 40 percent rating effective January 1, 2001, for the Veteran's service-connected postoperative prostate cancer remained in effect. Following VA genitourinary examination on May 25, 2001, the VA examiner stated, "The [Veteran] is affected in his daily activities and occupation." The diagnosis was status-post radical prostectomy and vasectomy with residual incontinence, impotence, and depression. In a Supplemental Statement of the Case dated on May 2, 2002, and issued to the Veteran and his service representative on May 7, 2002, the RO assigned a 60 percent rating effective January 1, 2001, for the Veteran's service-connected postoperative prostate cancer. The RO noted that the 60 percent rating was a reduction from the 100 percent rating previously assigned for the Veteran's service-connected postoperative prostate cancer. The Veteran's formal TDIU claim was contained on a VA Form 21-8940, "Veteran's Application For Increased Compensation Based On Unemployability," dated on May 14, 2002, and date-stamped as received by the RO on May 17, 2002. The Veteran asserted on this form that he had become too disabled to work on August 26, 1999. He also stated that he last had worked full-time in 1998 and his disability had affected his full-time employment in 1999. He stated further that his service-connected postoperative prostate cancer prevented him from securing or following any substantially gainful occupation. He finally stated that he had left his last job because of his service-connected postoperative prostate cancer and had tried to find work since he became too disabled to work. In statements on a July 2002 VA Form 21-4138, the Veteran asserted that he had tried to obtain 15 different jobs but had been denied employment due to his "physical condition." He described his physical condition as "having incontinence numerous times an hour." He also contended that his incontinence made it unlikely that, even if he were hired, he would not be retained on a job. The Veteran attached a list of employers he had contacted about potential employment. Following VA genitourinary examination in November 2002, the VA clinician provided the following opinion as to the Veteran's employability: This [Veteran] has some incontinence but it looks like he is managing it by wearing a tampon or something in the undergarment. His ankle and shoulder disabilities do not look to be serious and preventing him from working. The Veteran said that he is nervous and is on sertraline and Xanax, so he cannot work on all the machinery. That is his main concern, but there are plenty of jobs where one can work away from the machinery, so I think there is no reason why he cannot have gainful employment if he can find a job. As noted above, in a rating decision dated on July 24, 2003, and issued to the Veteran and his service representative on August 5, 2003, the RO denied the Veteran's claim of entitlement to a TDIU. The RO concluded that the Veteran was not entitled to a TDIU based on the findings concerning his employability in the November 2002 VA general medical examination and the absence of findings concerning his employability in subsequent VA outpatient treatment records. In an addendum to a VA outpatient treatment note dated on August 6, 2003, and labeled "Medical Certificate," a VA staff psychiatrist opined that the Veteran's psychiatric "condition is considered as stable and [he] is employable." This VA clinician asked that a copy of this "Medical Certificate" be issued to the Veteran. The Veteran's SSA records, received by the RO in March 2006, show that, in April 2004, he was awarded SSA disability benefits effective July 27, 2001, for status-post prostate cancer with residual incontinence and for PTSD. These records largely consist of duplicates of the Veteran's VA outpatient treatment records and examination reports. On VA outpatient treatment in May 2007, the Veteran discussed his post-service work history. He reported that he last had worked in 1998 as a truck driver and "at a pipe coating company coating pipe with concrete" for 3 months. He previously had worked as a mechanic for years and had worked continuously between approximately September 1971 and 1998. Following VA audiology examination in April 2009, the VA audiologist provided the following opinion as to the Veteran's employability: The Veteran's reported tinnitus and degree of identified hearing loss, in and of itself, does not preclude an individual from obtaining gainful employment. The Veteran's identified hearing loss will cause him most difficulty understanding in noisy environments and during conversations lacking visual and gestural cues. His hearing loss is not at a degree that would prevent him from working; however, a job with low background noise would be most ideal. Following VA mental disorders examination in April 2009, the VA clinician provided the following opinion as to the Veteran's employability: This [Veteran] is not unemployable strictly because of his PTSD symptoms. He might have difficulty in some employment situations because of the sedating effects of his antipsychotic medication. This [Veteran] would be able to work in some sort of loosely supervised situation without a great deal of stress or the need to concentrate fully. Following VA general medical examination on May 6, 2009, the VA clinician opined: The Veteran's urinary frequency & incontinence - a residual of his prostatectomy for [service-connected] prostate cancer - prevents this Veteran's gainful employment in physical or sedentary occupations. Strenuous physical activities exacerbate stress/urge incontinence. Urinary frequency & incontinence would prevent even sedentary employment - with interruption in concentration & Veteran's discomfort in working in close proximity to others. In a rating decision dated on November 13, 2009, and issued to the Veteran and his service representative on November 20, 2009, the AMC granted, in pertinent part, the Veteran's claim of entitlement to a TDIU effective May 6, 2009. The AMC concluded that May 6, 2009, was the appropriate effective date for a TDIU because that was the first date that the record evidence demonstrated that the Veteran was unemployable solely as a result of his service-connected disabilities. In a letter dated on January 26, 2010, and date-stamped as received by the RO in Waco, Texas, on March 1, 2010, the Veteran disagreed with the effective date of May 6, 2009, for the grant of a TDIU. The Veteran asserted that he was entitled to an effective date "at least prior to" February 18, 2005, when he was sent a Statement of the Case (SOC) by the RO. He attached limited copies of certain correspondence sent to him by VA, to include the February 2005 SOC, a January 2006 Supplemental Statement of the Case, a prior Board remand dated in December 2006, and the November 2009 rating decision (discussed above). The Board acknowledges that the RO properly inferred an informal TDIU claim in August 2000 based on a review of the July 2000 VA genitourinary examination. It is not clear from a review of the record evidence, however, whether the RO sent the Veteran a blank VA Form 21-8940 when it issued the August 2000 rating decision. The Board notes that the Court has held that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level. The Court specifically held in Mindenhall that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. The Veteran does not contend, nor does the evidence show, that he did not receive the August 2000 rating decision. He also does not contend that he did not receive a VA Form 21-8940 when the August 2000 rating decision was mailed to him although this form was not listed among the attachments provided to him at that time. The Veteran's informal TDIU claim also was not discussed in the cover letter to the August 2000 rating decision. There is no clear evidence to rebut the presumption of regularity with respect to the issue of whether the RO sent a VA Form 21-8940 to the Veteran when it mailed the August 2000 rating decision to him. Having reviewed the record evidence, the Board concludes that the RO provided the Veteran with a VA Form 21-8940 when it issued the August 2000 rating decision to him as part of its regular duties in adjudicating VA disability compensation claims. The remaining evidence of record persuasively suggests that, although the Veteran met the schedular criteria for a TDIU at least as of July 13, 1999, when he was awarded service connection for postoperative prostate cancer which was rated as 100 percent disabling, it does not indicate that his service-connected disabilities, alone or in combination, prevented him from securing or maintaining substantially gainful employment until May 6, 2009. This is the earliest factually ascertainable date that the Veteran was unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. The evidence also indicates that, prior to May 6, 2009, multiple VA clinicians concluded that the Veteran was not unemployable solely as a result of his service-connected disabilities. The Veteran himself was issued a "Medical Certificate" in August 2003 in which a VA staff psychiatrist opined that the Veteran's psychiatric condition (which was diagnosed as PTSD) was stable and he was not unemployable as a result of this service-connected disability. Although SSA concluded in April 2004 that the Veteran was disabled as a result of his service-connected postoperative prostate cancer and his service-connected PTSD effective July 27, 2001, the Board notes that VA is not bound by any determination of SSA. And, following VA mental disorders examination in April 2009, the VA clinician found that the Veteran was not unemployable solely as a result of his service-connected PTSD. The Board also acknowledges that several VA clinicians who provided opinions concerning the Veteran's unemployability during the pendency of this appeal impermissibly considered the impact of both his service-connected and non-service-connected disabilities on his unemployability. For example, in evaluating the Veteran's unemployability in November 2002, the VA clinician discussed both the Veteran's non-service-connected ankle and shoulder disabilities in addition to his service-connected postoperative prostate cancer. The April 2009 VA audiologist also considered both the Veteran's non-service-connected hearing loss and his service-connected bilateral tinnitus in discussing his unemployability. To the extent that the VA clinicians in November 2002 and in April 2009 considered the impact of both the Veteran's service-connected and non-service-connected disabilities on his unemployability, the Board finds this evidence less than probative on the issue of whether the Veteran is entitled to an earlier effective date than May 6, 2009, for the grant of a TDIU. See Van Hoose, 4 Vet. App. at 361, and Hatlestad, 5 Vet. App. at 524; see also 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Board acknowledges the Veteran's lay assertions that he is entitled to an earlier effective date than May 6, 2009, for the grant of a TDIU. The evidence does not support these assertions, however. The Veteran essentially has contended he is entitled to a TDIU as of the date of his prostatectomy in 1998. In the Veteran's view, his prostatectomy caused him to experience post-surgical urinary frequency and incontinence (as part of his service-connected postoperative prostate cancer) which prevented his continued employment. The Board disagrees. Critically, the Board finds that the Veteran's argument concerning his entitlement to an earlier effective date for the grant of a TDIU ignores the fact that, although he met the schedular criteria for a TDIU at least as of July 13, 1999, the record evidence did not support a finding that he was unemployable solely as a result of his service-connected disabilities until May 6, 2009. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). The evidence does not show that the Veteran was unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities until VA examination on May 6, 2009, when the VA examiner found that the residuals of the Veteran's service-connected postoperative prostate cancer (urinary frequency and incontinence) prevented his employment in all physical and sedentary occupations. The Veteran has asserted that the mere fact that he met the schedular criteria for a TDIU prior to May 6, 2009, somehow entitles him to an effective date for the grant of a TDIU on the date that these criteria were met. This "argument" is a serious misunderstanding of relevant VA law and regulations governing an award of a TDIU which require both an inability to secure and follow a substantially gainful occupation solely as a result of service-connected disabilities and specific levels of VA disability compensation. Id. In summary, although the Veteran met the schedular criteria for a TDIU as early as July 1999, the Board finds that the Veteran was not entitled to a TDIU until May 6, 2009, when the record evidence demonstrated both that his service-connected disabilities interfered with his employability and he met the schedular criteria for a TDIU. The Board observes that the laws and regulations governing effective dates are clear. The effective date of an evaluation of an 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 the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In this case, although the evidence of record demonstrates that the Veteran met the schedular criteria for a TDIU as early as July 1999, it also shows that he was not entitled to a TDIU until May 6, 2009. The Veteran also has not identified or submitted any competent evidence demonstrating his entitlement to an earlier effective date than May 6, 2009, for a grant of a TDIU. Thus, the Board finds that the criteria for assigning an effective date earlier than May 6, 2009, for a grant of a TDIU are not met. ORDER Entitlement to an earlier effective date than May 6, 2009, for a grant of a TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs