Citation Nr: 1751263 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-23 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date prior to September 1, 2006, for entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded this claim in May 2015. FINDING OF FACT From at least March 6, 2006, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date of March 6, 2006 for entitlement to a TDIU have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The Veteran filed a claim on March 6, 2006 for entitlement to an increased disability rating for his service-connected back disability. A December 2006 rating decisions granted an increased 40 percent disability rating, effective March 6, 2006, the date of claim. In July 2007, the Veteran submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and an October 2007 rating decision denied entitlement to a TDIU, continued the 40 percent disability rating for the Veteran's back disability and granted separate 10 percent disability ratings for right and left lower extremity radiculopathy, effective March 6, 2006 (noted as the date of claim). The Veteran submitted a Notice of Disagreement (NOD) as to this rating decision and a substantive appeal following a March 2009 Statement of the Case (SOC). A May 2010 rating decision granted increased 20 percent disability ratings for right and left lower extremity radiculopathy and granted entitlement to a TDIU effective, April 12, 2010. In a July 2010 decision, the Board granted entitlement to a 60 percent disability rating for the Veteran's back disability. A September 2010 rating decision implementing the Board's decision assigned the 60 percent disability rating for the Veteran's back effective March 6, 2006, noting that the Board's decision "indicates that a 60 percent evaluation is warranted based on incapacitating episodes and that the evaluation is warranted for the entire appellate period." This rating decision also granted entitlement to an earlier effective date for the award of TDIU and assigned an effective date of September 1, 2006, which was noted as "the day following your last day of gainful employment." The rating decision stated that "[y]our testimony regarding incapacitating exacerbations has been established as credible by [the Board] and this would certainly preclude all types of gainful employment." The rating decision referenced an August 2006 letter from the Veteran's last employer (Dewberry & Davis), which noted that the Veteran's employment was being terminated as of August 31, 2006 "per the company's leave policies which provide for a maximum leave period of six months" and that "you will continue to receive long term disability benefits from Reliance Standard." The Veteran filed a September 2011 NOD as to the effective date assigned for the TDIU and stated that the last day he worked was January 19, 2006. He stated that he filed his claim on March 6, 2006, that he "was never able to return to work at Dewberry & Davis" and that this employer "kept me in a 'disabled' status from January 2006 until I was administratively terminated in August 2006." He also stated that "[i]t is my belief that my last day of 'gainful employment' was January 19, 2006 and that the effective date for [TDIU] should be April 1, 2006 which is the first day of the month after I filed my claim." Following a May 2013 SOC, the Veteran submitted an August 2013 substantive appeal and a separate statement that essentially reiterated the September 2011 NOD and stated that "[i]t remains my belief that my last day of 'gainful employment', and the last day that I performed ANY work for Dewberry, was January 19, 2006 and that the effective date for [TDIU] should be April 1, 2006 which is the first day of the month after I filed my claim." In May 2015, the Board remanded the Veteran's claim. The remand stated that the Veteran's "TDIU claim was inferred as part and parcel to" the Veteran's March, 6, 2006 back increased rating claim, with citation made to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remand highlighted that while "the Veteran asserts that he stopped working after January 19, 2006...it is undisputed that he was still employed through August 31, 2006." The Board remanded the claim in order to attempt to determine "the exact last date the Veteran worked, which he asserts was January 19, 2006, whether he continued to receive employment compensation after he stopped working, and if so, when such compensation ceased to constitute a living wage or at least exceed poverty guidelines." Subsequent to the Board remand, Dewberry & Davis returned a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) in October 2015. It was noted that the Veteran's employment was from September 2005 to August 31, 2006, that the Veteran earned approximately $450 during the 12 months preceding his last date of employment, that the Veteran last worked August 31, 2006 and that his last payment was made in September 2006 for $40. The Board notes that on the Veteran's July 2007 VA Form 21-8940 he reported working from September 2005 to August 2006 for Dewberry and noted the highest gross earnings per month as $2,000. The Board finds the information supplied by the disinterested employer to be more probative as to the amount of money earned by the Veteran during the 12 months preceding his last date of employment. See also November 2007 Social Security Administration Decision (noting that the Veteran's "official wage records show no income earned since the alleged onset date" of September 25, 2003). II. Analysis Initially, as quoted above, in two separate statements, in September 2011 and August 2013, the Veteran specifically stated that the effective date for the award of TDIU "should be April 1, 2006 which is the first day of the month after I filed my claim." While a veteran "will generally be presumed to be seeking the maximum benefit allowed by law and regulation," a veteran may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See AB v. Brown, 6 Vet. App. 35 (1993). As will be outlined below, the Board finds that entitlement to an effective date of March 6, 2006 for a TDIU is warranted, which will result in the Veteran first receiving payment the first day of the following month, which is April 1, 2006. See 38 U.S.C.A. § 5111 (West 2014); 38 C.F.R. § 3.31 (2017). As the Board is granting in full the particular disability rating (TDIU) effective the date clearly expressed by the Veteran (with respect to the date of first payment of April 1, 2006), the Board need not address whether an effective date prior to March 6, 2006 is warranted. The effective date of an award based on a claim for increase in disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110 (West 2014). Except as otherwise provided, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (2017). Based on the facts of this case, the Veteran's TDIU claim can be considered a claim for an increase in disability compensation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (stating "there can be no doubt that an award of TDIU to a veteran who was previously rated less than 100% disabled is an 'increase' in compensation"). As noted above, the May 2015 Board remand stated that the Veteran's "TDIU claim was inferred as part and parcel to" the Veteran's March, 6, 2006 back increased rating claim, with citation made to Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the date of claim for entitlement to a TDIU was March 6, 2006. Accordingly, if entitlement arose at least on this date, that would mean that March 6, 2006 would be the later date between the date entitlement arose and the date of claim and it would therefore generally be the appropriate effective date. Upon review, the Board finds that the date entitlement arose was at least March 6, 2006 in that from at least March 6, 2006 the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. A schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that are of a certain combined disability rating, which was present in this case from March 6, 2006. See 38 C.F.R. § 4.16(a) (2017). As cited above, a September 2010 rating decision assigned a 60 percent disability rating for the Veteran's back effective March 6, 2006 and noted that the July 2010 Board decision "indicates that a 60 percent evaluation is warranted based on incapacitating episodes and that the evaluation is warranted for the entire appellate period." This rating decision also granted entitlement to an earlier effective date for the award of TDIU and assigned an effective date of September 1, 2006, which was noted as "the day following your last day of gainful employment." The rating decision stated that "[y]our testimony regarding incapacitating exacerbations has been established as credible by [the Board] and this would certainly preclude all types of gainful employment." Based on the July 2010 Board decision and September 2010 rating decision, the Board and the RO, essentially, found that the Veteran's symptomatology was of similar severity since at least March 6, 2006 and the Board accepts this favorable finding. Entitlement to a TDIU was assigned from September 1, 2006 because this was "the day following your last day of gainful employment." Review of the record, however, indicated that while August 31, 2006 was technically the Veteran's last day of employment, he had been on disability leave prior to this date and that he last worked in January 2006. See August 2007 Letter from Dewberry & Davis, September 2011 NOD and August 2013 Veteran Statement. In addition, the October 2015 VA Form 21-4192 from Dewberry & Davis noted that the Veteran's employment was from September 2005 to August 31, 2006 and that the Veteran earned approximately $450 during the 12 months preceding his last date of employment. Based on the fact that the Veteran was on disability leave from prior to March 6, 2006 to August 31, 2006 and that he had only earned approximately $450 in the year prior to August 31, 2006, the Veteran's employment from March 6, 2006 to August 31, 2006 cannot be considered to have been gainful employment in that while he was technically employed until August 31, 2006, he was not actually working and not earning substantially gainful income. Entitlement to a TDIU is warranted when a Veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" and the Board finds that the evidence indicated that from at least March 6, 2006 the Veteran met this criterion. See 38 C.F.R. § 4.16 (2017). In sum, the Board finds that from at least March 6, 2006, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As noted above, the date of claim for entitlement to a TDIU was March 6, 2006. As entitlement arose at least on March 6, 2006, this date of claim is the later date between the date entitlement arose and the date of claim. As such, the Board concludes that the criteria for an effective date of March 6, 2006 for entitlement to a TDIU have been met and the Veteran's claim is therefore granted. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2017). ORDER Entitlement to an effective date of March 6, 2006 for entitlement to a TDIU is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs