Citation Nr: 1604064	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  14-33 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an earlier effective date, prior to October 14, 2011, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from August 1945 to October 1947.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran submitted a formal claim for a TDIU on May 20, 2010; there were no communications received prior to this time that could be construed as a formal or informal claim for a TDIU. 

2.  For the entire appeal period from May 20, 2010, the Veteran was unable to secure and follow a substantially gainful occupation due service-connected disabilities. 


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an earlier effective of May 20, 2010, for the award of a TDIU have been met.  38 U.S.C.A. 
§§ 1155, 5110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400(o), 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application."  38 U.S.C.A. § 5110(a).  The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  VA regulations provide that the effective date for increased ratings shall be the "date of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. § 3.400(o)(1). 

An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase.  In general, "date of receipt" means the date on which a claim, information or evidence was received in VA.  38 C.F.R. § 3.1(r).  A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit."  38 C.F.R. § 3.1(p). 

In a January 2012 decision, the RO granted a TDIU effective October 14, 2011.  The Veteran has appealed the effective date assigned for a TDIU. He contends that a TDIU is warranted from the date of his May 10, 2010, claim for benefits based on unemployability, or alternately, from August 20, 2010, the date of receipt of private medical evidence identifying unemployability due to service-connected disabilities.   

The record shows that the Veteran submitted a formal claim for a TDIU on May 20, 2010 (VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability), due to service-connected "profound hearing loss" and "tinnitus."  The Board finds that there were no communications received prior to May 20, 2010, that could be construed as a formal or informal claim for a TDIU.  A claim for a TDIU was not otherwise raised by the evidence of record prior to May 20, 2010.  Accordingly, the Board finds that May 10, 2010, is the date of the claim for purposes of assigning an effective date.  The Board must next determine when it was "factually ascertainable" that the criteria for a TDIU were met for the rating period from May 20, 2010.

TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).  Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. §§ 3.321(b), 4.16(b). 

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).  In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  38 C.F.R. §4.16(a).

For the rating period prior to October 14, 2011, the Veteran was in receipt of a 50 percent rating for bilateral hearing loss and a 10 percent rating for tinnitus; he had a combined 60 percent rating.  Because the bilateral hearing loss and tinnitus result from a common etiology, they will be considered as one disability.  38 C.F.R. § 4.16(a).  For these reasons, the Board finds that for the entire rating period on appeal, he has met the schedular criteria for a TDIU.  Therefore, application of a TDIU is appropriate so long as the severity of the Veteran's service-connected disabilities warrants such a rating during this time period.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

The next step is to determine whether, prior to October 14, 2011, the Veteran was unemployable due to his service-connected disabilities.  38 C.F.R. §§ 3.340(a) (1), 4.15.  As noted above, the Veteran submitted an initial May 20, 2010, formal claim for compensation based on unemployability due to profound hearing loss and tinnitus.  He indicated that he had not worked full time since 1992.  He had completed four years of high school education and formerly worked as in marketing and sales.  

An August 20, 2010, medical opinion from a private audiologist shows that with consideration of the Veteran's work history and communicative history, hearing loss and tinnitus rendered him unemployable.  The private audiologist reasoned that the Veteran's functional limitations would prevent face-to-face verbal communication and telephone communication, and would pose a significant safety risk in any job setting involving transportation, or heavy or moving machinery.  She opined that hearing loss would significantly impair his employability in most job assignments, with or without adaptation.  

An October 2014 VA examination, on which the RO's grant of a TDIU was based, shows that the Veteran's hearing loss impacted ordinary conditions of daily life and his ability to work, in that he was severely hearing impaired and could not understand speakers in most situations.  

The Board finds that the August 2010 private opinion is probative and indicates that the Veteran was unemployable due to service-connected hearing loss and tinnitus.  Findings from the private opinion are consistent with findings from the later October 2014 VA examination.  The August 2010 opinion was provided just a few months after he submitted his May 2010 claim for a TDIU, where he self-identified unemployability due to hearing loss and tinnitus, and his presentation has not changed over the entire period on appeal.  For these reasons and resolving reasonable doubt in his favor, a TDIU is warranted from May 10, 2010.  

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, the Board finds that such error was harmless and will not be further discussed.  


ORDER

An earlier effective of May 20, 2010, but no earlier, is granted for the award of a TDIU.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs