Citation Nr: 18144229 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 17-60 263 DATE: October 25, 2018 ORDER Entitlement to an effective date earlier than April 22, 2016, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In an April 2016 rating decision, the local Regional Office (RO) awarded service connection for major depressive disorder. A disability rating of 30 percent was assigned from September 15, 2014, the date of receipt of the claim. A disability rating of 70 percent was assigned from April 22, 2016, the date of a VA examination. 2. The Veteran’s claim for entitlement to a TDIU was received by the Department of Veterans Affairs (VA) on May 2, 2016. 3. In an August 2016 rating decision, the RO awarded entitlement to a TDIU, predicated upon the award of service connection for major depressive disorder. 4. The Veteran did not have any prior claims for a TDIU pending at the time of the September 15, 2014, claim for service connection for major depressive disorder. CONCLUSION OF LAW The criteria for an effective date prior to April 22, 2016, for the award of entitlement to a TDIU have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.155, 3.157, 3.114, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1965 to December 1966. Effective Date of TDIU The Veteran claims entitlement to an effective date prior to April 22, 2016, for the award of TDIU. He specifically contends that he is entitled to an earlier effective date of September 15, 2014, the date upon which he filed his claim for service connection for major depressive disorder. A total disability rating based on individual unemployability 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When assigning the effective date for an award of compensation, the date is typically based on 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. However, in claims for increased disability compensation, including a claim for a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). By way of background, on September 15, 2014, the Veteran filed a claim for service connection for major depressive disorder, among other disabilities. In an April 2016 rating decision, the RO granted service connection for major depressive disorder, assigning a 30 percent disability rating from September 15, 2014, and a 70 percent disability rating from April 22, 2016. Thereafter, on May 2, 2016, the Veteran filed a claim for entitlement to a TDIU. In an August 2016 rating decision, the RO granted a TDIU on the basis of the Veteran’s major depressive disorder. The RO assigned an effective date of April 22, 2016, as the Veteran met the minimum rating criteria for consideration of a TDIU on that date. See id. The record reveals that the grant of TDIU in the present case is predicated upon the grant of service connection for major depressive disorder, specifically the assigned disability rating of 70 percent from April 22, 2016. Prior to the assignment of the 70 percent disability rating for major depressive disorder, the Veteran did not meet the criteria for consideration of a TDIU. See id. As previously noted, in the April 2016 rating decision, the RO granted service connection for major depressive disorder, assigning an initial rating of 30 percent, effective as of September 15, 2014, then increasing the evaluation to a rating of 70 percent from April 22, 2016. The Board of Veterans’ Appeals (Board) notes that at the time service connection was awarded for major depressive disorder, the Veteran was also service-connected for tinnitus, evaluated as 10 percent disabling from September 15, 2014. The Board further notes that prior to September 15, 2014, the Veteran was not service-connected for any other disabilities. Thus, prior to and as of September 15, 2014, the Veteran’s service-connected disabilities did not meet the disability criteria for total ratings as in 38 C.F.R. §§ 4.16, 4.17. Accordingly, the Veteran cannot be granted an effective date for TDIU prior to the effective date of the 70 percent disability rating for major depressive disorder. Consequently, the Board finds that April 22, 2016, is the proper and earliest effective date for the grant of a TDIU. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against entitlement to an effective date prior to April 22, 2016, for the assignment of a TDIU. In adjudicating this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel