Citation Nr: 1341108 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 07-17 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than April 30, 2008, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2006, May 2007, and December 2008 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine and Detroit, Michigan, respectively. Due to the current location of the Veteran's residence, the jurisdiction of his appeal remains with the RO in Detroit, Michigan. This issue was remanded by the Board in March 2011 and June 2013. Requested development having been completed, the appeal is now properly before the Board for review. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for his service-connected, post-operative fulguration of the urethra and bladder that was received by the RO on April 30, 2008. 2. TDIU was then granted by the RO in December 2008, based upon the Veteran's increased symptomatology for this service-connected disability, effective April 30, 2008. 3. Affording the Veteran the benefit of the doubt, within one year prior to the date of the claim, on May 30, 2007, it was factually ascertainable that the Veteran's service-connected, post-operative fulguration of the urethra and bladder was productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for the assignment of a May 30, 2007, effective date, but not earlier, for the grant of a TDIU have been met. 38 U.S.C.A. §§ 5110, 7104 (West 2002); 38 U.S.C.A. §§ 3.400, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the VCAA require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2013). In the instant case, the Veteran's claim for an earlier effective date for the award of TDIU is being granted herein. As such, any deficiency with regard to VCAA for this issue is harmless and non-prejudicial. II. Earlier Effective Date The Veteran maintains that he is entitled to an effective date prior to April 30, 2008, for the assignment of a TDIU. The provisions governing the assignment of the effective date for an increased rating (or, in this case, the assigned effective date for a TDIU resulting from a service-connected disability or disabilities) 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). The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). In this matter, the Board must determine the date that entitlement to TDIU arose. Prior to April 30, 2008, service connection was in effect for bladder dysfunction, rated between 20 percent and 40 percent disabling, and a left orchiectomy, rated at 30 percent disabling. During this period, the Veteran's combined disability rating was, at most, 60 percent (excluding one period reflecting a temporary total evaluation due to convalescence from August 1, 2006, to November 30, 2006). In cases such as this one, where the Veteran claims unemployability by reason of service-connected disabilities but does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for the period prior to April 30, 2008, the rating board is authorized to refer the case to the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation. 38 C.F.R. § 4.16(b). In June 2013, the Board found that evidence of record suggested that the Veteran may have been rendered unemployable prior to April 30, 2008. Beginning in 2005, he was required to use several absorbent pads per day as a result of urinary leakage and frequency. The Veteran has indicated that, not only was this a taxing situation, physically, but that it was a source of embarrassment that often results in staying at home. Further, he has undergone multiple procedures in an effort to alleviate his severe symptoms, each requiring time for the procedure and recovery. Turning specifically to the issue of unemployability, VA Vocational Rehabilitation records, requested by the Board in March 2011, indicate that the Veteran was denied entrance into the program, as it was deemed that the severity of the Veteran's disability did not make it feasible for him to sustain suitable employment. See Letter, May 30, 2007. The letter went on to indicate that he would be unable to succeed in a program of training or education, and that he would not be able to find a job which matched his skills. It was noted that the Veteran was a laborer by history, and that pursuit of employment at that time was not feasible. The Counselor indicated in November 2008 that, at the time of the 2007 determination, he relied on the fact that physical limitations imposed by the Veteran's service-connected disabilities were an impairment to employability. It was also determined that the Veteran lacked transferable vocational skills which would be compatible with his disability limitations. As an evaluation of 40 percent for bladder dysfunction alone had been in effect since 2003, indicating severe symptomatology, it must be determined whether Veteran was capable of finding and securing gainful employment prior to April 30, 2008, and if not, whether the inability to do so was the result of his service-connected disability (the Board notes that the Veteran was also in receipt of a 30 percent rating for removal of his left testicle, though it has not been suggested that this disability played a role in his inability to maintain gainful employment). Because the Veteran exhibited severe symptomatology associated with his service-connected disabilities, prior to the assigned effective date of April 30, 2008, which would make sedentary office work difficult, and because the Veteran was historically a laborer (also certainly hindered by these disabilities), the Board found in June 2013 that a referral to the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation was warranted in this case. That decision was provided in August 2013. At that time, it was noted that the Veteran's combined rating was, at most, 60 percent prior to April 2008. The Director also pointed out the Veteran's statements in which he indicated that his urinary disorder was taxing, and a source of embarrassment that often resulted in staying home. Turning to the VA Vocational Rehabilitation records, the Director pointed out that the Veteran's physical disabilities, which in the opinion of the Counselor rendered the Veteran unemployable, encompassed non-service-connected disorders (to include diabetes and pancreatitis) and urinary symptomatology. The Director also indicated that a 2006 VA examination did not reveal significant occupational effects from the Veteran's urinary disability, and that although the Veteran received disability from the Social Security Administration (SSA), that determination was not binding on VA in this matter. While the Director relied upon the existence of non-service-connected disabilities within the Vocational Rehabilitation determination, in support of the denial of a TDIU award, the Board notes that the May 30, 2007, determination specifically indicated that veteran's service-connected disabilities contributed to his unemployment, and limited his capacity for work activities which required immediate access to a bathroom and participation in physically-demanding work. The Counselor indicated that these disabilities put the Veteran at risk for reduced work performance in a number of work environments. Specifically, it was noted that the Veteran experienced urges to use the bathroom and had difficulty making it in time. Also, he experienced itching inside the urethra, which the Veteran stated was very intense and was very embarrassing when he tried to alleviate that problem. As a result, the Veteran reported that he withdrew from people. Resulting functional limitations included the need for immediate access to a bathroom, without physically demanding work, and not in the presence of others due to his urinary and itching symptoms. Although nonservice-connected disorders were also noted, he was found to have an impairment to employment as the result of his service-connected disabilities on May 30, 2007. The Board finds that, because the Counselor found the Veteran to be unfit for vocational rehabilitation, but did not indicate whether his service-connected disabilities alone rendered him unemployable, the Veteran should be afforded the benefit of the doubt in this case. While there may be some question as to whether the Veteran's urinary symptoms alone were productive of severe economic inadaptability prior to April 2008, the Board is nonetheless obligated in circumstances such as these to examine the evidence in the light most favorable to the Veteran. After doing so, the Board finds that it was factually ascertainable that the Veteran was unable to maintain gainful employment, due to service-connected disabilities, from May 30, 2007. This date is within one year of the claim for increase. As such, the Board finds that the criteria for the assignment of a May 30, 2007, effective date for entitlement to a TDIU, but not earlier, have been met. ORDER Entitlement to an effective date of May 30, 2007, but no earlier, for a TDIU award is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs