Citation Nr: 1806454 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-08 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than November 28, 2006, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert W. Gillikin, II, Attorney-at-Law ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to December 1963 and from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the issues of (1) entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus; (2) entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD); (3) entitlement to an increased disability rating in excess of 20 percent for diabetes mellitus; (4) entitlement to an increased disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity; (5) entitlement to an increased disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity; and (6) entitlement to an increased disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, were previously remanded by the Board in September 2013. Prior to re-certification of the issues to the Board, the Veteran indicated that he wished to withdraw his appeal on these issues. See May 2014 VA Form 21-4138. As such, those claims are also no longer before the Board for appellate review. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for diabetes and associated residuals on July 26, 2006. 2. The Veteran met the schedular criteria for a TDIU on October 3, 2005. 3. As of November 1, 2005, the Veteran stopped working and his service-connected disabilities rendered him unable to obtain or maintain employment. CONCLUSION OF LAW The criteria for an effective date of November 1, 2005, for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.156 (b), 3.157, 3.340, 3.400, 4.15, 4.16, 20.200, 20.201, 20.302, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date Analysis for TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran in this case met the schedular criteria requirements under 38 C.F.R. § 4.16 (a) for the entire initial rating period beginning October 3, 2005. Specifically, the Veteran was service connected for PTSD, rated as 50 percent disabling; peripheral neuropathy of the right upper extremity, rated as 30 percent disabling; peripheral neuropathy of the left upper extremity, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; and erectile dysfunction, rated as noncompensable. The Veteran had a combined rating of 90 percent beginning October 3, 2005. As such, the Board finds that the minimum schedular criteria for TDIU are met for the period beginning October 3, 2005. The Board notes that there are some procedural issues regarding the Veteran's TDIU claim. In a September 2008 rating decision, the RO granted a TDIU effective November 28, 2006, one year prior to the date the Veteran filed his formal claim for a TDIU. Thereafter, in September 2009, the Veteran filed a timely Notice of Disagreement (NOD) with the effective date assigned for the grant of a TDIU. A Statement of the Case (SOC) was issued in October 2009; however, the Veteran did not submit a timely formal substantive appeal. Instead, in a May 2010 statement, the Veteran again noted that he disagreed with the effective date assigned for a TDIU. The RO interpreted this May 2010 statement as a new claim for an earlier effective date for a TDIU. The RO denied an earlier effective for a TDIU in a December 2011 rating decision. The RO's decision to interpret the May 2010 statement as a "stand alone" claim for an earlier effective date for a TDIU was improper as stand-alone claims for earlier effective dates have no legal merit. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. In this case, however, the Board finds that the Veteran's claim for an earlier effective date for a TDIU does not arise from the May 2010 statement; and therefore, is not a stand-alone claim for an earlier effective date. Instead, the Board finds that the Veteran's TDIU claim was part and parcel of previously pending increased rating claims. Specifically, during a July 2010 Board hearing on various increased rating claims (including diabetes and residuals thereof), the Veteran's representative indicated that he had not received the October 2009 SOC (denying an earlier effective date for a TDIU). Further, it appears from the hearing transcript that the issue of a TDIU for the period prior to November 28, 2006 was not addressed by the Veterans Law Judge because a timely substantive appeal had not been filed with the October 2009 SOC. Upon further review, and in consideration of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that the issue of entitlement to a TDIU for the period prior to November 28, 2006, should have been considered as "part and parcel" of the increased rating claims on appeal. In other words, when evidence of unemployability is submitted in the course of a claim for a higher rating for one or more service-connected disabilities, and there is evidence of unemployability pertaining to the service-connected disability or disabilities at issue, a claim for TDIU will be considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o). See Rice, 22 Vet. App. at 454. Here, the Veteran filed a claim for an increased rating for diabetes and residuals thereof on July 26, 2006. The record demonstrates that there was evidence of unemployability due to the Veteran's service-connected disabilities as of November 2005. See December 2007 VA Form 21-8940 (indicating that the Veteran became too disabled to work as of November 2005). As such, because the Veteran's claim for an increased rating for diabetes and residuals thereof was filed on July 26, 2006, VA should have consider whether a TDIU (which is part and parcel of the increased rating claim) was warranted for the period one year prior to the date of the increased rating claim (i. e., as of July 26, 2005). See 38 C.F.R. § 3.400 (o)(2) (the effective date in a claim for an increased rating will be one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Here, the evidence establishes that the Veteran became too disabled to work as of November 1, 2005, as specifically indicated on his TDIU application, but no earlier. See December 2007 VA Form 21-8940. On this date, the Veteran had already met the schedular criteria for a TDIU. Further, the RO also found that the Veteran's service-connected disabilities (including diabetes mellitus type II with associated residuals, including bilateral upper and lower peripheral neuropathy and retinopathy) were of such severity as to render him unemployable. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that an effective date of November 1, 2005, is warranted. ORDER An effective date of November 1, 2005, but no earlier, for the award of a TDIU is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs