Citation Nr: 18156037 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-37 417 DATE: December 6, 2018 ORDER Entitlement to an earlier effective date prior to April 25, 2013 for the grant of a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran was not precluded from securing or following a substantially gainful occupation prior to April 25, 2013. CONCLUSION OF LAW The criteria for an earlier effective date prior to April 25, 2013for the grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1966 to April 1968. 1. Entitlement to an earlier effective date prior to April 25, 2013 for the grant of TDIU. A claim for TDIU is essentially a claim for an increased rating, and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(o) (2017). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). In addition, when the matter of entitlement to TDIU is raised by the record in any claim for an increased rating, such matter becomes part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). It is also the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled; rating boards should refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the schedular percentage requirements. 38 C.F.R. § 4.16(b). A July 2015 rating decision granted TDIU effective April 25, 2013, the date of his increased rating claim for his service-connected diabetes mellitus type II and related complications, and the effective date of the assignment of disability ratings for such complications, including: a 30 percent disability rating for diabetic nephropathy associated with diabetes mellitus type II with erectile dysfunction, separate 20 percent disability ratings for bilateral upper extremity peripheral neuropathy associated with diabetes mellitus type II with erectile dysfunction, separate 10 percent disability ratings for bilateral lower extremity peripheral neuropathy of the sciatic nerve associated with diabetes mellitus type II with erectile dysfunction, and separate 10 percent disability ratings for bilateral lower extremity peripheral neuropathy of the femoral nerve associated with diabetes mellitus type II with erectile dysfunction. These disability ratings increased the total combined disability rating of the Veteran’s service-connected disabilities to 80 percent from April 25, 2013. Prior to April 25, 2013, the Veteran was in receipt of a combined 10 percent disability rating from September 3, 2003 and a combined 20 percent disability rating from September 28, 2006 for his service-connected diabetes mellitus type II with erectile dysfunction. As such, prior to April 25, 2013, the Veteran did not meet the schedular criteria for a grant of TDIU. Nevertheless, the Veteran may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to April 25, 2013. Indeed, the November 2018 Informal Hearing Presentation (IHP) requests remand for extraschedular consideration of TDIU from September 28, 2008, when the Veteran asserts entitlement to TDIU was first raised by his September 28, 2008 increased rating claim regarding his service-connected diabetes mellitus type II. Additionally, the Veteran’s July 2015 Notice of Disagreement (NOD) asserts that the proper effective date for the grant of TDIU is December 1, 2007. The Veteran’s March 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, asserted that he was unable to secure or follow any substantially gainful occupation due to all of his service-connected disabilities. He reported therein that he last worked as a technician for Puerto Rico Telephone Company, where he was employed from 1979 to January 1999, and that he stopped work due to his service-connected disabilities. He further reported an educational history including four years of college, without any other education or training. Finally, he stated that he received Social Security compensation based upon his age, in addition to retirement income from his prior employer. In a May 2015 employment information request, a representative of the Veteran’s former employer, Puerto Rico Telephone Company, reported that the Veteran worked as an engineering technician from 1979 to 1999, when he retired based upon his years of service. As an initial matter, the Board finds that an effective date of December 1, 2007 is not warranted, as asserted within the Veteran’s NOD, as there is no factual basis that the Veteran had filed a claim for TDIU or for an increased rating at that time. Additionally, while the Board acknowledges that the Veteran claimed entitlement to an increased rating for his diabetes mellitus type II on September 28, 2008, in order for a claim of entitlement to TDIU to be raised in the context of an increased rating claim, the evidence of record must also show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, there is no probative evidence that the Veteran’s service-connected diabetes mellitus type II with erectile dysfunction rendered him unable to secure or follow a substantially gainful occupation prior to April 25, 2013. Following the submission of his September 28, 2008 increased rating claim, there is limited evidence of record until the Veteran submitted another increased rating claim for his service-connected diabetes mellitus type II and related complications on April 25, 2013, the currently assigned effective date for TDIU. The Board has reviewed VA treatment records prior to April 25, 2013; however, such records document that the Veteran’s diabetes mellitus type II was largely controlled by diet until a July 18, 2012 notation states that the Veteran’s diabetes mellitus type II was uncontrolled due to poor dietary habits. In any event, such evidence does not support the Veteran’s contention that his service-connected diabetes mellitus type II with erectile dysfunction rendered him unable to secure or follow a substantially gainful occupation prior to April 25, 2013. As such, the Board concludes that there is no basis to refer this matter for consideration of an extraschedular TDIU rating prior to April 25, 2013. Given the above, there is no reasonable doubt to be resolved, and the Veteran’s claim of entitlement to an earlier effective date prior to April 25, 2013 for the grant of TDIU must be denied. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel