Citation Nr: 18152833 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-40 885A DATE: November 27, 2018 ORDER An effective date of December 19, 2011, but not earlier, for the award of a total disability rating based on individual unemployability (TDIU), is granted. REMANDED Entitlement to a rating higher than 60 percent for a lumbar spine disability. Entitlement to a separate rating for radiculopathy of the left leg. Entitlement to a separate rating for radiculopathy of the right leg. Entitlement to an initial rating higher than 70 percent for depressive disorder. FINDING OF FACT Since December 19, 2011, the Veteran’s service-connected disabilities precluded him from substantial gainful employment. CONCLUSION OF LAW The criteria for an effective date of December 19, 2011, for the award of a TDIU have been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.340, 3.341, 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to June 1980. These matters are on appeal from an October 2013 rating decision. At the time of the October 2013 rating decision, the Veteran’s depressive disorder was rated as 50 percent disabling. A June 2016 rating decision increased the rating form 50 percent to 70 percent, effective December 19, 2011 (date of service connection claim). However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the October 2013 rating decision continued 10 percent ratings for right and left sciatic radiculopathy. However, in a June 2016 rating decision the RO determined that the previously assigned 10 percent ratings were contemplated in the assigned 60 percent rating pursuant to Diagnostic Codes 5293-5243 for the Veteran’s lumbar spine disability. As such, these claims are more accurately stated as listed on the first page of this decision. In January 2015, the Veteran filed a new claim for TDIU, in connection with his increased rating claim. Thus, the issue of entitlement to a TDIU is before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Finally, the Board notes that in December 2012 the Veteran filed a claim for TDIU due to his service-connected lumbar spine and psychiatric disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Although the Veteran’s claim for TDIU was denied in the October 2013 rating decision, a June 2016 rating decision awarded TDIU effective December 20, 2012. However, in an August 2016 Notice of Disagreement (NOD) the Veteran disagreed with the effective date assigned. As such, the issue of entitlement to an earlier effective date for the award of TDIU is within the Board’s jurisdiction as part of his claim for an increased rating. Id. Earlier effective date for TDIU The Veteran is seeking an effective date earlier than December 20, 2012, for the award of a TDIU rating. Specifically, he requests an effective date of December 19, 2011, the date of service connection and the award of a 70 percent rating for his service-connected psychiatric disorder. See, August 2016 notice of disagreement. 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) (2018). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a) (2018). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2018). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, given the Court’s holding in Rice and the specific facts of the Veteran’s appeal, the Board turns to the general rule regarding the establishment of effective dates. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA received the Veteran’s claim for service connection for a psychiatric disorder on December 19, 2011. A September 2012 granted service connection for depressive disorder rated 50 percent disabling effective December 19, 2011. An October 2013 rating decision continued the 50 percent rating for depressive disorder. In a December 2013 NOD, the Veteran disagreed with the 50 percent rating. A June 2016 rating decision increased the rating for depressive disorder form 50 percent to 70 percent, effective December 19, 2011. VA received the Veteran’s claim for TDIU on December 20, 2012. The Veteran reported that he was unemployable due to his service-connected lumbar spine disability and major depressive disorder. See,December 2012 VA 21-8940. The Veteran reported that he last worked in December 2009 due to his service-connected disabilities which caused his unemployability. In June 2016, the RO granted TDIU with an effective date of December 20, 2012. The Board finds that the claim for TDIU is inferred with the claim for increased ratings, to specifically include his major depressive disorder and the evidence that the Veteran was unemployed. Rice, 22 Vet. App. 447, 453-54. As previously stated, the claim for TDIU was pending alongside the increased rating appeal, the Board properly has jurisdiction over the effective date. See id. As the claim for a TDIU is part of the Veteran’s December 19, 2011 claim for an increased disability rating for depressive disorder the period on appeal extends to the date VA received the increased disability rating claim. As of December 19, 2011, the Veteran was service-connected for depressive disorder, rated 70 percent disabling; lumbosacral strain, rated 60 percent disabling; and 10 percent ratings each for a ganglion cyst of the left wrist, sciatic radiculopathy of the right and left leg; for a combined disability rating of 90 percent. Therefore, since December 19, 2011, the Veteran met the minimum schedular threshold requirement (of a combined disability rating of 70 percent or more) to be considered for a TDIU, pursuant to 38 C.F.R. § 4.16 (a). Based on the evidence of record, the Board finds that a grant of TDIU is warranted, effective December 19, 2011. In considering the evidence on record, the Board notes that on June 2012 VA mental disorders examination, the examiner opined that the Veteran with moderate occupational impairment due to depressive disorder. On May 2016 VA mental disorders Disability Benefits Questionnaire the examiner noted the Veteran had a long history of depression and was last employed in 2009 and opined that his psychiatric disorder caused occupational and social impairment with deficiencies in most areas. When affording the Veteran the benefit of the doubt, the evidence of record warrants a grant of TDIU effective December 19, 2011. The appeal is granted to this extent. REASONS FOR REMAND Claims for increased ratings and separate ratings [Regarding the Veteran’s claims for higher ratings for a lumbar spine disability and depressive disorder and separate ratings for radiculopathy of the left and right leg, following the issuance of a June 2016 Statement of the Case (SSOC), additional VA treatment records and VA examination reports were added to the record, but the Veteran has not waived initial RO consideration of that evidence. 38 C.F.R. § 1304 (2018). Without a written waiver of initial RO consideration of the additional evidence, the Veteran’s claims must be returned to the agency of original jurisdiction for readjudication. Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003); Bernard v. Brown, 4 Vet. App. 384 (1993).] The matters are REMANDED for the following action: Readjudicate the claims for an increased rating for a lumbar spine disability and depressive disorder and separate ratings for right and left leg disabilities, based on the entirety of the evidence, with consideration of the pertinent evidence submitted since the June 2016 SSOC KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel