Citation Nr: 1331905 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-26 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an effective date prior to December 16, 2010, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that granted entitlement to a TDIU effective December 16, 2010. In August 2013, the Veteran and his son testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Effective February 26, 2010, the Veteran had a combined disability rating of 80 percent. 2. The Veteran filed a claim for a TDIU on December 16, 2010, which may be construed in this case as a notice of disagreement with respect to the ratings assigned in a November 2010 rating action. 3. Resolving all doubt in favor of the Veteran, it is factually ascertainable that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of February 26, 2010. CONCLUSION OF LAW The criteria for an effective date of February 26, 2010 for the award of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.400, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran indicated at his August 2013 hearing that the grant of an earlier effective date of February 26, 2010 for a TDIU would satisfy his appeal, and the Board herein so grants. In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he is entitled to a TDIU retroactive to his claims of entitlement to service connection for PTSD and bilateral hearing loss, which were received on February 26, 2010. His TDIU is currently effective December 16, 2010: the date his explicit claim for a TDIU was received. The Veteran reports that he was just as disabled and unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities in February 2010 as he was 10 months later in December 2010. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, effective February 26, 2010, the Veteran had a combined disability evaluation of 80 percent, comprised of a 60 percent rating for bilateral hearing loss, and a 50 percent rating for PTSD. 38 C.F.R. § 4.25. Therefore, effective February 26, 2010, his disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) (2013). The Veteran and his son testified at the hearing that his ability to secure or follow a substantially gainful occupation was the same in February 2010 as it was in December 2010. In this regard, one could construe the VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Unemployability) received in December 2010, as an expression of his disagreement with the original November 2010 rating action that failed to award that level of compensation. That matter then remained open until it was subsequently addressed in the April 2011 grant of the benefit. Significantly, the evidence of record upon which the 80 percent combined evaluation was granted effective from February 2010, was essentially identical to the record upon which the TDIU was granted. Therefore, the evidence supports the Veteran's contention that his ability to secure or follow a substantially gainful occupation was the same in February 2010 as it was in December 2010. Based on the lay and medical evidence, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates that it is factually ascertainable that he met the criteria for a TDIU on February 26, 2010, the date of his original claim for benefits. Thus, an effective date of February 26, 2010 for the award of a TDIU is warranted. ORDER An effective date of February 26, 2010, for the award of a total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs