Citation Nr: 18155104 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-48 652 DATE: December 4, 2018 ORDER Entitlement to an effective date earlier than June 14, 2010, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A claim for increased ratings for service-connected disabilities was received on May 2, 2008. 2. A claim for increased compensation based on unemployability was received on June 14, 2010. 3. The RO granted the claim for increased compensation based on unemployability effective June 14, 2010. 4. The evidence does not show that the Veteran was precluded from securing or maintaining a substantially gainful occupation due to his service-connected degenerative arthritis of the lumbar spine and his right knee disability prior to June 14, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than June 14, 2010 for the award of TDIU have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.40, 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1980 to November 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Salt Lake City, Utah, Regional Office (RO) of the United States Department of Veterans Affairs, which granted entitlement tot TDIU effective June 23, 2010. This decision implemented a June 2016 Board decision granting entitlement to TDIU, but not setting an effective date. The Board decision stemmed from an August 2010 RO denial of TDIU. In an August 2016 rating decision subsequent to initiation of the appeal, the RO granted an earlier, June 14, 2010, effective date. As this is not the full benefit sought, the appeal continues. The Veteran seeks an effective date of May 2, 2008, the date of a claim for increased evaluations of his service connected back and knee disabilities. He later filed a formal claim for TDIU, received June 14, 2010. He essentially argues that his claim for increased rating includes a claim for the maximum benefit possible, to include a 100 percent rating under TDIU. Indeed, a claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, May 2, 2008, does establish the date of receipt of claim for TDIU. A TDIU claim is a claim for increased compensation, so the effective date rules for increased compensation claims apply. See Hurd v. West, 13 Vet. App. 449 (2000). As a general rule, that means that the effective date for increased awards is the date of receipt of the claim, or the date entitlement arose, whichever is later. If the claim is received within one year of the increase in severity, the date of increase (also the date entitlement arose) is assigned. 38 C.F.R. § 3.400(o). June 14, 2010, while described as a date of claim, is actually assigned as the effective date as the date entitlement arose; the RO stated they accepted the Veteran’s lay statement, made in a phone call, as evidence of his unemployability and claim. In order to establish an earlier effective date, then, the Veteran must show an earlier date of factual entitlement to TDIU, up to one year prior to the filing of his claim on May 2, 2008. 38 C.F.R. § 3.400(o). The Board notes that for the time period in question, the Veteran did not meet the threshold schedular eligibility requirements for TDIU under 38 C.F.R. § 4.16(a). However, the Board in granting eligibility for the award of TDIU in 2016 met all due process requirements under 38 C.F.R. § 4.16(b) and secured referral to the Director, Compensation and Pension Service, who considered the entire appellate period. This decision may therefore proceed on the merits of the claim without further referral and delay. The Board granted entitlement to TDIU in June 2016, finding that the Veteran’s service-connected back and left knee disabilities, rated a combined 40 percent disabling prior to June 2010, would prevent him from obtaining or retaining substantially gainful employment. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. His degree of education and vocational training and experience limited his opportunities, and his physical limitations made a return to prior employment impossible. He was also heavily medicated with morphine and oxycontin, which impacted his alertness, and when his conditions flared up he would be unable to work full time. A review of the medical evidence, particularly the private medical records for the period of 2004 to 2009, show that even with use of narcotics for pain, he was doing well. He reported his pain was controlled, and there were no changes in his activity levels associated with his service-connected conditions. He did increase medication at times, especially in winter, to deal with exacerbations, but overall made no report of exceptionally impaired function, worsening disability, or greater impact on employment. In November 2009, the Veteran reported that he felt his level of functioning had declined since his last visit and he wanted to continue with current pain plan. He had been experimenting with his medications by skipping doses, accounting for increases in pain. A March 2010 treatment note indicates the Veteran reported his level of functioning had improved since his last visit and he wanted to continue with current pain plan. In July 2010, the Veteran reported that he thought he was unemployable due to the pain medication he is taking. He reported experiencing swelling in his hands and joints and that it takes several hours each day to get going. The Veteran stated that on a good day he could work for three hours, but then reports that he is “down the next day completely.” The only work he stated he could do is simple weeding and yard work and that any strenuous work is tough for him. The Veteran stated that he thought he should not work due to these reasons. In July 2010 the Veteran underwent a VA contract examination for evaluations of his service-connected back, knee and foot disabilities. In pertinent part, the examiner noted that the Veteran reported that while he had not been incapacitated, he experienced functional impairment in difficulty standing or sitting for any period of time. He reported that he could not do any bending or lifting due to his back condition. The Veteran stated that he was unable to gain employment due to his back condition, knee and foot pain, and as a result of being on chronic narcotics. It is clear from the evidence of records that the Veteran underwent a worsening of his condition after March 2010. He was functioning well and managing his pain at that time, and did not first report impact on employment until July 2010; this is after the currently assigned effective date. As the evidence of record fails to show factual entitlement to TDIU at any time prior to the currently assigned effective date of June 14, 2010, entitlement to a yet earlier date of award is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel