Citation Nr: 1330067 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-22 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date earlier than March 4, 2009 for the grant of a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Wade R. Bosley, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2012, the Board denied entitlement to an effective date earlier than March 4, 2009 for the grant of a total disability rating based on individual unemployability (TDIU). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Veteran's representative before the Court and VA's General Counsel agreed to a Joint Motion For Remand (JMR). By an Order dated later that month, the Court granted the JMR and remanded the case to the Board for action consistent with the terms of the JMR. In July 2013, the Veteran's representative submitted additional evidence in the form of a June 2013 vocational evaluation. The Veteran waived review of the additional evidence by the RO. See 38 C.F.R. § 20.1304(c) (2013). VACATE VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2013). Here, the Court remanded the claims on appeal, based on the JMR, which found that the March 14, 2012 Board decision failed to provide the Veteran due process under the law. Accordingly, in order to prevent prejudice to the Veteran, the March 14, 2012 decision of the Board must be vacated, and a new decision will be entered as if the March 14, 2012 decision by the Board had never been issued. FINDINGS OF FACT 1. The Veteran submitted a claim of entitlement to a TDIU on January 21, 2005. 2. It is factually ascertainable that the Veteran was unemployable due to his service-connected disabilities on January 21, 2005. CONCLUSION OF LAW The criteria for an effective date of January 21, 2005, but no earlier, for entitlement to a TDIU have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's February 2005 and July 2009 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's TDIU claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was told that the evidence must show that his service-connected disabilities must prevent him from performing tasks required to get or keep substantially gainful employment. The Veteran was also informed how effective dates are assigned. The purpose behind the notice requirement has been satisfied because he has been afforded a meaningful opportunity to participate effectively in the processing of this claim, including the opportunity to present pertinent evidence. Therefore, no further notice is needed for the claim on appeal. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA treatment records. He has submitted a private opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In April 2008, the Social Security Administration (SSA) notified the RO that there is no SSA medical file because the Veteran is not entitled to disability. Thus, a remand for SSA records is not necessary because such a request would be futile. Moreover, the Veteran underwent adequate VA examinations in order to ascertain his employability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis Generally, the effective date of an evaluation and award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). A claim is "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) (2013). An informal claim is a "communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2013). VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). See also Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). A TDIU may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). For the purpose of one 60 percent disability, or one 40 percent disability in combination, as specified at 38 C.F.R. § 4.16(a), 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. 38 C.F.R. § 4.16(a). Prior to March 4, 2009, service connection was in effect for degenerative changes in the cervical spine with radiating pain to the right shoulder, arm, and hand, associated with residuals of lumbar strain with arthritis and disc bulging, evaluated as 40 percent disabling, effective February 24, 1998; residuals of lumbar strain with arthritis and disc bulging, evaluated as 20 percent disabling, effective August 6, 1996; residuals of thoracic strain with arthritis and disc bulging, evaluated as 10 percent disabling, effective August 6, 1996; and hemorrhoids, evaluated as 10 percent disabling, effective March 25, 1998. In the instant case, the Veteran's service-connected cervical spine, thoracic spine, and lumbar spine disabilities arise from a common etiology and affect a single body system. Accordingly, the percentage criteria for TDIU were met prior to March 4, 2009 during the entire rating period on appeal. 38 C.F.R. §§ 4.16(a), 4.25 (2013). Determining whether the effective date assigned for an increased rating is correct or proper under the law requires a determination of the date of the receipt of the claim for the increased rating, as well as a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan v. Gober, 10 Vet. App. 511, 521 (1992). 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. at 125. Thus, three possible dates may be assigned depending on the facts of the case: if an increase in disability occurs after the claim is filed, the proper effective date is the date that the increase is shown to have occurred (date entitlement arose); if an increase in disability precedes the claim by a year or less, the proper effective date is the date that the increase is shown to have occurred (factually ascertainable); and if an increase in disability precedes the claim by more than a year, the proper effective date is the date that the claim is received (date of claim). Id. at 126. A rating decision dated in August 2003 denied a claim of TDIU. This decision was not appealed, and therefore, it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). Subsequent to August 2003, the Veteran filed a claim for TDIU that was received by the RO on January 21, 2005. There is no other communication received by the Veteran subsequent to the August 2003 final RO decision that can be considered a claim. See 38 C.F.R. § 3.1(p). Accordingly, the exception to the general rule allows assignment of an effective date on or after January 21, 2004, if the evidence demonstrates that a factually ascertainable increase in disability occurred. See 38 C.F.R. § 3.400(o)(2). Thus, the proper effective date for the grant of TDIU is the earliest date on or after January 21, 2004 that the evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See Id.; 38 C.F.R. § 4.16(a). There is no medical evidence of record from January 21, 2004, to March 4, 2009, that expressly addresses how the Veteran's service-connected disabilities impacted his ability to secure or follow a substantially gainful occupation. The vast majority of the medical evidence of record received since January 21, 2004 discusses only the Veteran's numerous symptoms without commenting on the impact these symptoms had on his ability to retain or maintain employment. At a VA examination conducted in April 2005, the examiner stated that the Veteran's gait was normal, without assisting devices, and that he was not wearing any braces or orthoses. As to occupational history, the examiner stated that the Veteran was not working and that he was on disability. The examiner reported that because of radiating pain from the cervical spine, the Veteran was complaining of occasional pain in the right shoulder and right upper arm. In the last seven or eight months, he had occasional pain in the left shoulder and left upper arm. The Veteran did not have any complaint of limitation of range of motion. He had flare-ups of pain during repetitive motion in both shoulders. No complaints of numbness or paresthesias in either upper extremity during today's examination. Examination of the cervical spine revealed mild pain on palpation at the C4-C5 level, with painful but full range of motion. During movement of the cervical spine he did not have radiation of pain to the upper extremities. Examination of the thoracolumbar spine revealed pain on palpation at the L4-L5 level, with painful and limited range of motion. There was no radiating pain from the lumbar spine to the lower extremities. During repetitive motion of the cervical and thoracolumbar spine, the Veteran had increased pain, easy fatigability, lack of endurance, and decrease in range of motion by five additional degrees. The neurological examination revealed deep tendon reflexes of two plus and equal, bilaterally, in the upper and lower extremities. Straight leg raising was negative. Pinprick test revealed normal skin sensitivity in the lower and upper extremities. The Veteran was able to tiptoe and stand on his heels, and his gait was normal without assistive devices. Examination of the right shoulder revealed full range of motion, without pain on palpation or movement. Results were similar for the left shoulder. During repetitive motion testing of both shoulders, the Veteran complained of pain in both shoulders when he elevated both hands above his head. He also complained of easy fatigability, but no decrease of range of motion was found during repetitive motion of the shoulders. The examiner stated that the Veteran's daily activities were not affected by his spine condition and shoulder complaints, and that he was able to walk, dress himself, feed himself, and drive. The examiner stated that the Veteran's recreational activities were affected and that he was not able to lift or to bend over because of the increase of pain. X-rays showed degenerative disc disease at the C4-C5 level and mild spondylolisthesis of the cervical spine of C-2 on C-3, degenerative changes of the lumbar spine at L4-L5 level, and normal shoulder. The examiner stated that the Veteran had a history of electromyelogram related to his cervical spine, with a negative study. The diagnoses were chronic lumbosacral spine degenerative joint disease and pain; cervical spine degenerative disc disease, status post surgery and pain; and radiating pain to both shoulders from the cervical spine, with normal shoulders shown on examination. The examiner also opined that the joint pain in the shoulders was not related to his service-connected cervical or thoracolumbar spine pain. A July 2005 VA emergency room report documented the Veteran's complaints of pain in his mid upper back radiating into his right shoulder, arm, and the right side of his chest. He reported that his arm felt numb at times and that the pain had started two hours prior to the treatment visit. He reported no recent injury or heavy work. The examiner noted that the Veteran had been working with a lawn mower that morning and pulled a muscle, thus aggravating his chronic right shoulder pain. A VA treatment record in July 2005 reports the Veteran's complaint of right shoulder pain. There was no wasting of the shoulder muscles, with free range of motion, and no focal tenderness. Assessment noted that the Veteran was an automobile mechanic, with stable osteoarthritic shoulder pain. One week later, in August 2005, the Veteran sought treatment at VA saying that his lower back and shoulders were hurting, and that his current pain medication was not effective. A VA psycho-social assessment in August 2005 noted the Veteran's report of employment as having last worked in 1998 as a mechanic and that he was disabled. VA outpatient treatment records in March 2006 document that the Veteran complained of intermittent bilateral shoulder and right pectoral pain. These records document that the Veteran "works as automechanic, involved in heavy lefting (sic) and physical labor." Objectively, there was no edema, no focal tenderness, muscle wasting, or limited range of motion of the shoulders found. The assessment was osteoarthritic shoulder pain. VA outpatient treatment records in October 2006 report the Veteran's complaints of increasing low back pain, with radiating intermittent numbness and pain in the right buttock, thigh, leg, and foot. The examiner noted "he works as auto mechanic, physically demanding job . . . constant bending, lefting (sic) and tugging on heavy equipment or car parts . . . out of meds for several days." Objectively, there was no edema or focal tenderness found. There was free range of motion of the right hip, knee, and ankle, and limited movement of the spine, secondary to pain. The assessment was worsening low back pain, with new radiation to the right leg. A VA neurological examination in January 2007 for headaches found normal muscle bulk and tone in all four extremities. Power was five out of five in all four extremities, with some give-way weakness in the right upper extremity. Muscle stretch reflexes were absent in the upper extremities, and two plus and symmetrical in the lower extremities, with bilateral flexor plantar responses. Radiculopathy of the right upper extremity was not reported. The examiner stated that there was no finger-nose ataxia or heel-shin ataxia, that sensation was normal to light touch, and that the Veteran walked with a limp on the right due to pain, but his gait was otherwise unremarkable. The examiner stated that the Veteran continued to complain of ongoing back pain, as well as weakness in the right lower extremity. VA outpatient treatment records in November 2007 report the Veteran's complaints of increased pain of his right lower back, hip, and down his right leg. The Veteran complained that he was experiencing a sharp pain in the lower back, a duller pain down the right hip, and he described his right leg symptoms as a warm, achy, dull pain, with tingling and numbness. He stated that the severity of his low back pain was ten on an increasing scale of one to ten, and that the pain radiated. Objective findings included right hip pain on external and internal rotation, no tenderness, and spasm of the paraspinal muscle, with limited range of motion. A December 2007 x-ray was a normal right hip and mild degenerative changes at L3-4 and L4-5 levels. A February 2008 VA emergency room record reports that the Veteran complained of severe right lower back pain radiating into his right leg, and numbness and tingling of his right leg. He also reported pain in the clavicle area, with swelling of his the right side of his chest. The Veteran complained of numbness and tingling in both lower extremities. On examination there was no spinal tenderness, but paraspinal muscle spasm was noted. Flexion and lateral flexion were restricted due to pain. Lower extremity strength was five out of five on the left, and four out of five on the right. The assessment was chronic low back pain with radiculopathy, gradually worsening. Two days later, the Veteran reported continued low back pain, with radiation into the left gluteal area and down the left leg. A VA outpatient treatment record in February 2008 indicates that the Veteran was seen for reported spasms and pain throughout his body, which he stated were ten out of ten in severity. He complained that his arms were going numb. The treatment record indicated that the Veteran was in tears due to the pain in the right shoulder that had begun one week earlier and progressively worsened. The Veteran was unable to move his right arm. It was noted that his primary care provider had prescribed a narcotic for the pain, but as the Veteran was enrolled in a substance abuse program, he was told to avoid narcotics. A February 2008 magnetic resonance imaging scan of his cervical spine showed moderate to severe multilevel degenerative joint disease of the spine, with mass effect on cervical spinal cord and severe spinal cord stenosis. VA outpatient treatment records in March 2008 report that the Veteran came in to have insurance papers filled out due to a recent neck injury. It was noted that the pain was adequately controlled by morphine. At a Board hearing in June 2011, the Veteran submitted a medical record dated in March 2008. The medical record indicates that the Veteran injured his spine, with symptoms first appearing on February 7, 2008. It was noted that the Veteran first sought treatment for this injury on February 13, 2008, for pain control. A previous neck injury and cervical spine surgery were reported. The diagnosis was cervical spinal canal stenosis. The physician stated that the Veteran was disabled to work from February 7, 2008 to an undetermined date. On March 4, 2009, the Veteran underwent a VA spine and peripheral nerves examination. The examiner reviewed the Veteran's claims file and provided an accurate history of his disabilities. In the peripheral nerves examination report, the examiner stated that the Veteran had neck surgery in 1997 to relieve compression of the nerve root, which caused cervical radiculopathy of the right upper extremity and that after neck surgery, the symptoms of his right upper extremity and right shoulder resolved. The examiner stated that three years after the surgery there was a return of pain and numbness in the right shoulder and right arm, which had persisted up to the present time. The Veteran did not have symptoms of radiculopathy in the left shoulder or left upper extremity. The physical examination revealed a ninety percent diminished grip strength of the right hand and two out of five strength in the muscles of the right upper extremity. The examiner stated that there was a loss of superficial sensation of touch, pain, temperature, and deep sensation of vibration in the C5, C6, and C7 dermatomes, as well as in the L5 and S1 dermatomes as to the right lower extremity. Deep tendon reflexes were one plus in the right upper extremity, and two plus in the left upper extremity and left lower extremity; patellar reflexes were two plus, bilaterally, and Achilles reflex was two plus in the left lower extremity, and absent in the right lower extremity. The Veteran had unsteadiness when walking. His grip strength in the right hand was markedly diminished. He was unable to hold an object with his right hand, such as a cup of coffee. He was unable to remove a cap from a bottle or a lid from a jar, and was unable to turn a doorknob. The Veteran was unable to pick up and carry more than one pound with his right upper extremity. The examiner stated that the Veteran did not need assistance with shaving, grooming, and toileting, but had greater difficulty showering, bathing, dressing, and undressing. The diagnoses were cervical radiculopathy of the right upper extremity, due to degenerative arthritis and degenerative disk disease of the cervical spine, and lumbar radiculopathy of the right lower extremity, due to degenerative arthritis and degenerative disk disease of the lumbosacral spine. In the spine examination report, the examiner noted the Veteran's report that his low back pain had progressively worsened and was now constant, with radiation into the lower extremity. The examiner reported the Veteran's complaint of unsteadiness during walking and that any attempt to bend or stoop caused severe pain and spasm of the low back. The Veteran reported that he could drive an automobile for up to one half hour before he had to stop due to neck and low back pain. He reported that he had no symptoms involving his left shoulder or left upper extremity. Rather, he reported that he had neck pain on the right side. The Veteran stated that he had not worked since 1998 because of disability due to degenerative disk and joint disease throughout his spine. The physical examination of his spine revealed tenderness to palpation and spasm of the paraspinal muscles in the cervical, thoracic, and lumbar regions. His gait was slow, with a limp favoring the right lower extremity. Range of motion of the cervical spine could not be tested as any attempted movement of the cervical spine caused the Veteran to complain of severe, sharp, and intolerable pain. All movements of his thoracolumbar spine were reported as painful. All attempts at repetitive movement of the thoracolumbar spine caused complaints of severe and unbearable pain. Straight leg raising was limited on both sides by severe pain and muscle spasm of the low back. Range of motion of the right shoulder was limited by pain and muscle spasm of the right side of the neck. The Veteran did not want to perform repetitive movements of the right shoulder. The examiner opined that the pain in the Veteran's right shoulder, right arm, and right hand was caused by cervical radiculopathy that was a result of degenerative disc and joint disease of the cervical spine. In a July 2009 statement the Veteran reported that he did mechanical work such as helping his friends with brake jobs. He reported that he earned no more than $2000 in 2002 and 2003, never earned enough to file taxes, and never had a formal business name. He reported that he had not worked in the last 12 months and that the last work he did was to help a friend with light work on a car in the fall of 2007. The June 2013 vocational evaluation was provided by C.Y., a vocational expert. C.Y. interviewed the Veteran, reviewed the claims file and assessed his employability. It was noted that the Veteran had a general education degree and took courses in auto and truck diesel technology. Vocationally, he has been an automobile and diesel mechanic. C.Y. stated that the Veteran is unable to perform the tasks of this heavy work that requires standing, kneeling, stooping, lying down, and working with one's hands above one's head. C.Y. noted that the Veteran has skills that transfer to light work, but they also require use of the right hand for tasks requiring fine dexterity, writing, and working with tools. C.Y. noted that the Veteran has worked since 1998 as a "shade tree mechanic," but has been unable to use tools himself and unable to make the "business" pay. In the report, C.Y. addressed whether the Veteran was disabled prior to March 4, 2009. C.Y. pointed to the Veteran's testimony during the June 2011 Board hearing where he testified that his symptom level and functional limitations were unchanged from 2005 to the March 2009 VA examination that led to him eventually being granted a TDIU. C.Y. noted that the Veteran's right hand would spasm during the 2005 to 2008 timeframe where it would lock into a fist and he would have to use his left hand to pull it apart. C.Y. also noted that the Veteran turned to illicit substances to ease the pain that would affect his energy level, sleep, ambulation, emotions, and mood. C.Y. concluded that, when the medical notes are coupled with the Veteran's hearing testimony, it is clear that his service-connected impairments of his neck, mid and low back, but excluding his right upper extremity and right lower extremity radiculopathy, prevented him from securing and following a substantially gainful occupation since at least January 2005. The evidence from VA treatment records and examination reports tends to weigh against the claim as the effects of nonservice-connected disabilities are not shown to have an effect on the Veteran's employability and there is no express VA medical opinion showing unemployability. However, the Board finds the June 2013 vocational evaluation to be persuasive and weighs more heavily in favor of the claim. The vocational expert, C.Y., interviewed the Veteran and considered the evidence of record, the Veteran's vocational and educational history, and the effect of only his service-connected disabilities. C.Y. explained that the functional limitations manifesting from the disabilities prevented the Veteran from performing the heavy work of his profession of auto mechanic. Additionally, the Veteran would not have been able to perform lighter work due to the limitations. The evidence shows that the Veteran attempted self employment as an auto mechanic, but he was unsuccessful and even marginal employment was not shown. Additionally, while the Veteran's right upper extremity disability was rated at a higher level from March 4, 2009, service connection was nevertheless in effect for cervical spine with radiating pain to the right shoulder, arm, and hand prior to that date. Thus, any functional limitations resulting from right shoulder, arm, or hand problems prior to March 4, 2009 may be considered in the analysis as they resulted from a service-connected disability. With these considerations, the Board finds that the Veteran's service-connected disabilities precluded him from following a substantially gainful occupation prior to March 4, 2009. As to when a TDIU was factually ascertainable, the evidence tends to show that it was the same date of the claim-January 21, 2005, but no earlier. In the June 2013 vocational evaluation, C.Y. expressly noted that the Veteran was prevented him from securing and following a substantially gainful occupation since at least January 2005. Moreover, the evidence does not show that the increase in disability occurred from January 2004 to January 2005. Furthermore, in December 2007, February 2008, April 2009, September 2009, May 2010, May 2011, June 2011, and July 2013, the Veteran and his attorney representative stated that the effective date should be January 21, 2005 and that an effective date of January 21, 2005 would satisfy the Veteran's appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (finding that a claimant may limit appeal). Therefore, because the date of claim and the date it was factually ascertainable that a TDIU was warranted are both January 21, 2005, that date is the proper effective date for the grant of a TDIU. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126. As the preponderance of the evidence is against an effective date prior to January 21, 2005, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date of January 21, 2005, but no earlier, for the grant of a total disability rating based on individual unemployability, is granted, subject to laws and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs