Citation Nr: 18157255 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-39 242 DATE: December 12, 2018 ORDER Entitlement to an effective date prior to December 17, 2013, for the grant of entitlement to a total disability rating for compensation purposes based on individual employability (TDIU) is denied. FINDING OF FACT The competent evidence shows that the service-connected peripheral neuropathy of the bilateral upper and lower extremities precluded the Veteran from securing and maintaining substantially gainful employment as of December 17, 2013. CONCLUSION OF LAW Criteria for an effective date prior to December 17, 2013, for the assignment of a TDIU are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). Earlier Effective Date The Veteran filed a claim of entitlement to a TDIU in June 2013. He indicated that he last worked full-time on January 6, 2006. The claim was denied in June 2013. The Veteran submitted a notice of disagreement as to the denial of the claim. The Veteran submitted a claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities received on December 17, 2013. In an April 2014 rating decision, service connection for peripheral neuropathy of the bilateral upper and lower extremities was granted. A 20 percent rating was assigned for each of the bilateral upper and lower extremities effective December 17, 2013. In a May 2014 rating decision, entitlement to a TDIU was granted effective December 17, 2013. The RO indicated that the claim was granted effective the date that the bilateral upper and lower extremity peripheral neuropathy combined with his service-connected heart disability and precluded employment. The Veteran, through his representative, disagreed with the rating assigned for the grant of the TDIU. The Veteran’s representative contends that the effective date of the grant of a TDIU should be December 30, 2010, the date that the Veteran was granted service connection for a heart disability and assigned a 60 percent rating. The Veteran was also service-connected for diabetes mellitus and assigned a 20 percent rating as of that date. The combined rating was 70 percent effective December 30, 2010. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, 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. With regard to claims for increased ratings and TDIU, the effective date assigned will be the date of receipt of claim or the date entitlement arose, whichever is later, or the earliest date that it is factually ascertainable that an increase in disability occurred if a claim is received within one year of that date. 38 C.F.R. § 3.400(o) (2018). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under the law administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). It is 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. 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2018). A 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2018). As an initial matter, the Board notes that the Veteran met the criteria for a TDIU effective December 30, 2010, because, as noted, he was in receipt of service connection for diabetes mellitus rated as 20 percent disabling and a heart disability rated as 60 percent disabling. The combined rating assigned was 70 percent. Thus, he met the criteria for assignment of a TDIU as of December 30, 2010. 38 C.F.R. § 4.16(a). However, the evidence of record does not show that he met the requirements for assignment of a TDIU prior to December 17, 2013. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this regard, when the Veteran submitted his claim for service connection for a heart disability in December 2010, the Veteran did not mention unemployability as part of his claim. In February 2012, the Veteran underwent an examination and an Ischemic Heart Disease (IHD) Disability Benefits Questionnaire was submitted. The examination indicates that the Veteran’s heart disability impacted his ability to work in that he was unable to perform more than light work before he got chest pain. At a June 2013 VA heart examination, the examiner indicated that the Veteran was not able to perform arduous physical activity throughout the workday due to his heart condition. The examiner found that there were no effects on light to moderate physical employment activity or sedentary activity. At an April 2014 VA sensory examination, the examiner concluded that the Veteran’s peripheral neuropathy of the upper and lower extremities affected his ability to work in that decreased sensation of the bilateral upper and lower extremities put the Veteran at a high risk of injury. Prior to December 17, 2013, the Veteran experienced some occupational impairment. However, the record does not indicate that he was incapable of performing any type of work due to his service-connected heart disability since December 30, 2010. No persuasive, competent medical evidence is of record to demonstrate that he was unable to obtain or maintain all forms of substantially gainful employment due to his service-connected disabilities in effect at that time (diabetes mellitus and a heart disability). As noted, the effective date of award will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (2018). The Veteran contends that he warrants a TDIU effective since December 30, 2010, the date that he submitted a claim for service connection for a heart disability. However, as noted, the Veteran did not submit any informal or formal claim contending that he was unemployable until his formal claim for a TDIU was submitted in June 2013. The claim for a TDIU was denied in June 2013 because his then service-connected heart disability did not render him incapable of substantially gainful employment. Thereafter, in December 2013, he submitted a claim for entitlement to service connection for service connection for peripheral neuropathy of the bilateral upper and lower extremities. In a rating decision dated in April 2014, service connection was granted for peripheral neuropathy of the bilateral upper and lower extremities. A 20 percent rating was assigned for each disability effective December 17, 2013. In a May 2014 rating decision, entitlement to a TDIU was granted effective December 17, 2013, the date entitlement to service connection was established for his bilateral upper and lower extremity peripheral neuropathy. As such, a TDIU was awarded effective December 17, 2013, the earliest date that it is factually ascertainable that the Veteran was unemployable due to his service-connected peripheral neuropathy of the bilateral upper and lower extremities in conjunction with his service-connected heart disability. The Board notes that even if a claim had been filed in December 2010 when he submitted his claim for a heart disability, entitlement to a TDIU did not arise until years later, in December 2013 when he submitted a claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities. As such, an effective date of December 30, 2010, for TDIU would be precluded. 38 U.S.C. § 38 C.F.R. § 3.400(o)(1). For these reasons, the Board finds that there is no basis upon which to justify granting an effective date earlier than December 17, 2013, for an award of TDIU. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). In arriving at the decision to deny the 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, the doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel