Citation Nr: 1332609 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-13 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than February 17, 1998, for the award of a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-at-Law ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from May 1979 to May 1982 and December 1982 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision (issued in May 2010) of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDING OF FACT The evidence of record demonstrates the Veteran last worked on May 23, 1997, which is within one year prior to receipt of his claim for a TDIU. CONCLUSION OF LAW The criteria for an effective date of May 24, 1997, but no earlier, for the award of a TDIU are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants an earlier effective date to May 24, 1997, the date after the last date the Veteran worked. The Board finds that this represents a complete grant of the benefit sought on appeal; therefore, no discussion of VA's duty to notify and assist is necessary. The Veteran is seeking an effective date earlier than February 17, 1998, for the award of a TDIU. In arguments presented by his representative, it is contended that an earlier effective date is warranted because the Veteran stopped working in May 1997 and entitlement to a TDIU was granted within one year from that date. Thus, his representative argues that, because the Veteran filed his claim for increased compensation within one year from the date that it was factually ascertainable that his back disability had increased in severity, he is entitled to an earlier effective date. The Board agrees. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an increased evaluation "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). In granting entitlement to a TDIU, the RO acknowledged that the personnel records from the Veteran's last employer, Immigration and Naturalization Service (INS), shows that he stopped working in May 1997 (the exact date being May 23, 1997 per the personnel record). Further evidence of record shows that the Veteran has not worked and has had no earned income since 1997 (see especially the Social Security Administration statement dated in February 2010). In addition, records from the Social Security Administration show the Veteran was awarded disability compensation in 2001 with a disability onset date of January 1, 1999 (it is noted this was an amended date from the original claim of May 23, 1997) in part due to his service-connected lumbar spine disability. Consequently, there is evidence to demonstrate that the Veteran has not worked since May 23, 1997. The RO has already acknowledged by granting entitlement to the date of claim that the Veteran was unemployable due to his service-connected lumbar spine disability as of February 17, 1998. It erred, however, in applying the criteria for assigning an effective date in 38 C.F.R. § 3.400(r), which applies to reopened claims. As the Veteran's claim for a TDIU is a claim for increased compensation, however, an effective date of May 24, 1997, is appropriate as the Veteran last worked on May 23, 1997, which was within one year prior to receipt of his claim for a TDIU. However, an earlier effective date is not warranted as the evidence demonstrates the Veteran was working for well over a year prior to his discharge from service with INS on May 23, 1997. For the foregoing reasons, the Board finds that an effective date of May 24, 1997, but no earlier, for the award of a TDIU is warranted, and the Veteran's claim is granted to that extent. ORDER Entitlement to an effective date of May 24, 1997, but no earlier, for the award of a TDIU is granted, subject to controlling regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs