Citation Nr: 1808403	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-11 902	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an earlier effective date for the grant of individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Bassett, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1970 to January 1972.

This case is before the Board of Veterans' Appeals (Board) on appeal from September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 


FINDINGS OF FACT

1.  The Veteran filed a claim for entitlement to TDIU on July 25, 2005. 

2.  In an April 2006 rating decision, the RO denied entitlement to TDIU because the Veteran failed to submit verification of his former employment. 

3.  In a July 2009 rating decision, the RO found clear and unmistakable (CUE) error in the RO's failure to award TDIU in the April 2006 rating decision, explaining that failure to submit verification of former employment is not a reason to deny TDIU.  

4.  In a September 2009 rating decision, the RO denied entitlement to TDIU. 

5.  In a July 2011 rating decision, the RO granted entitlement to TDIU effective July 16, 2007. 


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for an earlier effective date of July 25, 2005, but no earlier, for the grant of TDIU have been met.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The VCAA describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In light of the favorable decision herein, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran.

II.  Earlier Effective Date

Generally, the effective date of an award of service connection, based either on an original claim or a claim reopened after final disallowance, may not be earlier than the date of receipt of claim or, if the claim is received within one year of separation from service, the day following the date of discharge or release.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter.  38 C.F.R. § 3.400.

Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service.  Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later.

A claim of TDIU is considered a claim for an increased rating, and as such, the law governing the effective date for a claim for increased compensation applies.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). 

For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim.  Further, if the increase occurred after the date of claim, the effective date will be the date of increase.  38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12- 98 (1998).

The Veteran seeks an effective date earlier than July 16, 2007.  The RO granted the Veteran's claim in a July 2009 rating decision effective the date he filed his first claim for TDIU, July 25, 2005, due to CUE in an April 2006 rating decision.  However, the RO appears to have overlooked this grant in subsequent rating decisions that continued to deny the Veteran's claim for TDIU until a July 2011 decision.  At that point, the RO granted TDIU with an effective date of the Veteran's second claim for TDIU, July 16, 2007.  No mention was made of the July 2009 grant of TDIU or the finding of CUE in the April 2006 denial of TDIU.  Based on this evidence, the effective date granted in the first decision to grant TDIU, July 25, 2005, is the correct effective date of service connection for TDIU.  As such, the Veteran's claim must be granted to this extent.  

However, an effective date prior to July 25, 2005, is not warranted.  The Veteran applied for TDIU on July 25, 2005 and there is no factually ascertainable evidence that the Veteran became unable to obtain or maintain employment in the year prior.  As such, no earlier effective date is warranted.  




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ORDER

An earlier effective date of July 25, 2005, but no earlier, for the grant of entitlement to TDIU, is granted.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs