Citation Nr: 1443230	
Decision Date: 09/26/14    Archive Date: 10/06/14

DOCKET NO.  12-00 408	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an effective date prior to June 29, 2009, for the award of a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1965 to October 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO) that awarded entitlement to TDIU (pursuant to a May 2011 Board decision that granted entitlement to TDIU), effective August 3, 2009.  A November 2011 rating decision granted an earlier effective date to June 29, 2009.  

FINDINGS OF FACT

1.  The evidence shows that the Veteran became unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities on May 5, 2009.  

2.  The Veteran's claim for TDIU was received on June 29, 2009, within one year of May 5, 2009.  

CONCLUSION OF LAW

The criteria for an effective date of May 5, 2009, for the award of TDIU are met.  38 U.S.C.A. §§ 5107(b), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.400, 4.16 (2013).  

REASONS AND BASES FOR FINDINGS AND CONCLUSION

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).  

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a), (b)(2) and 38 C.F.R. § 3.400(o).  A claim for TDIU is a claim for an increased rating.  Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999).  

Generally, the effective date of an award of increased compensation "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).  

However, an exception is available when 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."  38 U.S.C.A. § 5110(b)(2); Dalton, 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 United States Court of Appeals for the Federal Circuit has explained that the provisions of 38 U.S.C.A. § 5110 governing the effective date to be assigned for an increased rating require "that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim."  Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims).  

In the present case, the evidence shows that the Veteran was last employed by someone else in 1969.  Moreover, evidence shows that since that period of time, the Veteran has been self-employed as a sign painter, followed by operating an art shop doing detail-type work on cars and bikes, and most recently rebuilding vintage automobiles.  See, e.g., June 2007 VA treatment record; September 2007 VA treatment record.  The evidence suggests, although it is unclear, that the Veteran last worked full-time in January 2007 when his automobile shop burned down and destroyed his business inventory and belongings.  See, e.g., March 2009 VA mental disorders examination report; October 2009 VA Form 21-4185, Report of Income from Property or Business.  Nonetheless, on May 5, 2009 VA neurological examination, the Veteran reported that most of his headaches are prostrating, experiencing one incapacitating headache per day.  The examiner indicated that the Veteran's headaches appear to be severe.  On June 29, 2009, the Veteran raised entitlement to TDIU in a VA Form 9 (regarding an increased rating for cephalgia).  The evidence shows that the Veteran's entitlement to TDIU became factually ascertainable on May 5, 2009, the date of VA examination wherein the Veteran reported that he experienced prostrating attacks every day.  Because he filed his claim for TDIU within one year of the date of this examination, he may obtain an effective date earlier than the date of the claim.  Gaston, 605 F.3d at 984.  Thus, the Board finds that he is entitled to an effective day of May 5, 2009 for his award of TDIU.  

To the extent the Veteran may be seeking entitlement to TDIU earlier than May 5, 2009, the Board notes that there is no evidence that he filed a claim for TDIU prior to June 29, 2009, and there is no evidence of record to support such a claim.  In addition, there is no medical evidence raising a claim of entitlement to TDIU based on service-connected disabilities within one year prior to his claim of TDIU other than the May 5, 2009 VA neurological disorders examination report.  In this regard, the Board notes that the Veteran has been awarded a 50 percent rating for his cephalgia effective September 12, 2002.  As indicated above, the evidence of record shows, contrary to the Veteran's assertions in several instances, that he has been employed since, at least, January 2007.  See, e.g., June 2007 VA treatment record (noting the Veteran's production has decreased recently, but it was enough to make a living); Cf. August 2009 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (wherein the Veteran indicated he became too disabled to work in November 2000); October 2009 VA Form 21-4185 (noting he lost the bankruptcy case from a fire in January 2008 that destroyed his business inventory and belongings).  Further, there is no informal claim based on medical evidence prior to May 5, 2009, that was not adjudicated.  Therefore, an effective date earlier than May 5, 2009 for a grant of TDIU is denied.  38 C.F.R. § 3.400(o).  


ORDER

Subject to the law and regulations governing payment of monetary benefits, an effective date of May 5, 2009, for the award of TDIU is granted.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs