Citation Nr: 1335587 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-17 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to April 30, 2008, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to July 1969 and had more than three years of prior service. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to a TDIU rating, effective April 30, 2008. A Board hearing was held before the undersigned in May 2013. A transcript of this hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of such evidence. FINDING OF FACT On June 5, 2006, but not earlier, the Veteran met the criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). CONCLUSION OF LAW The criteria for the assignment of an effective date of June 5, 2006, but not earlier, for the grant of TDIU under 38 C.F.R. § 4.16(a) have been met. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2002); 38 U.S.C.A. §§ 3.156, 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The record reflects that the Veteran filed his initial claim for TDIU in June 2006. The RO denied this claim in a December 2006 rating decision. The Veteran filed an additional claim of entitlement to TDIU in April 30, 2008. In an October 2008 rating decision, the RO granted that claim, effective April 30, 2008. The Veteran asserts that he is entitled to an effective date prior to April 30, 2008, for the award of a TDIU rating. The RO denied his request for an earlier effective date on the basis that he did not submit a timely notice of disagreement with the December 2006 denial of his initial claim for TDIU, and there was no other basis for the award of an earlier effective date. The Veteran, however, contends that he did file a timely notice of disagreement with respect to the December 2006 decision. He further asserts that because there was no difference in his medical condition (or the assigned schedular evaluations of his service-connected disabilities) as of the date TDIU was granted and the date he filed his original claim, the effective date of the award of TDIU should be the date of his original claim for TDIU, June 5, 2006. Because the Veteran has submitted uncontroverted evidence demonstrating that he did in fact submit a timely notice of disagreement with the December 2006 rating decision, the evidence then supported a finding that he was unable to obtain or maintain gainful employment as a result of service-connected disabilities, and the schedular criteria for a TDIU rating were met as of the date of his original claim, the Board herein grants the Veteran's claim for an earlier effective date. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the 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). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 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); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). An April 2009 statement of the case reflects that the Veteran's claim for an effective date prior to April 30, 2008, for the award of the TDIU rating was denied because the Veteran did not submit a timely notice of disagreement with the December 2006 denial of his initial claim for TDIU, and there was no other basis for the award of an earlier effective date. A review of the record confirms that as of the date of the issuance of the April 2009 statement of the case (and a May 2010 supplemental statement of the case) the record did not contain a timely notice of disagreement with respect to the December 2006 rating decision. However, at the time of his May 2013 hearing before the Board, the Veteran submitted a date-stamped copy of the May 2007 notice of disagreement he filed with VA regarding the December 2006 denial of his claim. This copy, which bears the stamp of the Philadelphia RO indicating that the correspondence was received on May 9, 2007, appears to be bona fide. As discussed at the hearing, it appears that the notice of disagreement was inadvertently left with the American Legion when an RO staff member sought a power of attorney to accompany the notice of disagreement. As such, the Board concludes that the Veteran did submit a timely notice of disagreement, but that for reasons attributable solely to administrative error, the notice of disagreement was not associated with the Veteran's claims file. Consequently, the Veteran's June 2006 TDIU claim remained pending. Pursuant to the criteria outlined in 38 C.F.R. § 3.400(o)(1), the appropriate effective date is the later of the date of receipt of claim or the date entitlement arose. As entitlement arose on June 5, 2006, (the date that the Veteran's service-connected disabilities met the schedular criteria for consideration for a TDIU rating), the same date his TDIU claim was received, the criteria for an earlier effective date have been met. However, as the schedular criteria for TDIU were not met prior to June 5, 2006, and the record does not support a finding of worsening of any of service-connected conditions in the year prior to the date his TDIU claim was received, an effective date prior to June 5, 2006, is not warranted. ORDER An effective date of June 5, 2006, but not earlier, for the assignment of a TDIU rating is granted. ____________________________________________ James D. Ridgway Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs