Citation Nr: 18141093 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-17 569 DATE: October 9, 2018 ORDER Entitlement to an effective date earlier than December 27, 2014 for the grant of compensation under 38 U.S.C. § 1151 for left ankle achilles rupture is denied. Entitlement to an effective date earlier than December 27, 2014 for the grant of compensation under 38 U.S.C. § 1151 for right ankle achilles rupture is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on a schedular basis under 38 C.F.R. § 4.16(a) is denied. REMANDED Entitlement to a TDIU due to service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b) is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle achilles rupture occurred on December 27, 2014, and a claim was filed on August 5, 2015, within one year of the injury. 2. The Veteran’s right ankle achilles rupture occurred on December 27, 2014, and a claim was filed on August 5, 2015, within one year of the injury. 3. The Veteran does not have a single disability rated at 60 percent or higher, nor does he have any additional service-connected disabilities to bring the combined rating to 70 percent or more. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 27, 2014 for a grant of service connection of left ankle achilles rupture have not been met. 38 U.S.C. §§ 5107, 5110 (c); 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than December 27, 2014 for a grant of service connection of right ankle achilles rupture have not been met. 38 U.S.C. §§ 5107, 5110 (c); 38 C.F.R. § 3.400. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date Generally, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). For an award of disability compensation by reason of 38 U.S.C. § 1151, the effective date shall be the date such injury or aggravation was suffered if an application is received within one year from such date. 38 U.S.C. § 5110(c). The Veteran seeks an effective date earlier than December 27, 2014 for the grant of service connection for left and right ankle achilles rupture under 38 U.S.C. § 1151. Having reviewed the record, the Board finds that an earlier effective date is not warranted as the injury occurred on December 27, 2014. For awards of compensation under § 1151, the effective date shall be the date such injury was suffered, if an application is received within one year from such date. Here, in a December 2014 VA treatment record, the Veteran reported that he heard a popping sound from his bilateral Achilles tendon followed by swelling and discoloration on December 27, 2014. The Veteran subsequently filed a claim on August 5, 2015. Accordingly, the Board finds that an earlier effective date is not warranted as the record does not contain any evidence establishing that the injury occurred earlier than December 27, 2014. Consequently, there is no legal basis to assign an earlier effective date, and the claims for an effective date earlier than December 27, 2014 for the grant of compensation under 38 U.S.C. § 1151 for left and right ankle achilles rupture must be denied. TDIU TDIU 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board finds that the Veteran does not meet the schedular criteria for TDIU as he does not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability resulting in a combined rating of at least 70 percent. Service connection is currently in effect for: left ankle achilles rupture at 10 percent disabling prior to August 31, 2016, and at 30 percent disabling thereafter; right ankle achilles rupture at 10 percent disabling prior to August 31, 2016, and at 30 percent disabling thereafter; and tinnitus at 10 percent disabling. The Veteran’s combined evaluation is 30 percent disabling from December 27, 2014, and 60 percent from August 31, 2016. As the schedular criteria have not been met, the claim for TDIU on a schedular basis must be denied. REASONS FOR REMAND As discussed above, the schedular criteria for TDIU have not been met. However, when the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating on an extra-schedular basis may nonetheless be granted in exceptional cases when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. See 38 C.F.R. § 4.16(b). Here, the Board notes that an October 2016 opinion notes that the Veteran’s achilles tendon rupture would very likely eliminate any type of work requiring standing or walking any minimal distance or timeframe. In light of this, the Board finds that referral is warranted. On remand, the TDIU claim should be referred to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel