Citation Nr: 19155481 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 12-23 984 DATE: July 18, 2019 ORDER An effective date earlier than June 2, 2009, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Prior to June 2, 2009, the weight of the evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier than June 2, 2009, for the grant of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to May 1982 and June 1983 to August 2007. This claim was previously before the Board in December 2017, at which time it was remanded for further development to include the Veteran providing his employment status. The Board notes that the Veteran submitted an employment questionnaire with his notice of disagreement. The Veteran signed and dated the form indicating that he had not worked within the last twelve months. The Board finds that this document is not relevant to the period prior to June 1, 2009. The Veteran did not submit any other employment records or names of previous employers. The Board notes that during the pendency of this appeal, the Veteran filed a Notice of Disagreement (NOD) to a February 2018 rating decision proposing to reduce his TDIU to the schedular evaluation of 90 percent from November 1, 2018. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction. The Veteran was awarded a TDIU by a November 2014, rating decision effective June 2, 2009. He contends that he is entitled to a TDIU prior to June 2, 2009. He asserts that he should have been considered for TDIU in July 2007. See Notice of Disagreement, dated April 2013. He further stated that he retired in September 2007 due to his back condition. See VA Form 9, dated January 2015. Having reviewed the evidence of record, the Board concludes that TDIU should not become effective prior to June 2, 2009, which is the date it was determined that the Veteran was unable to secure and maintain substantially gainful employment due to his previously service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. 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. 38 C.F.R. § 4.16 (a). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). The original claim was received prior to the Veteran’s August 2007 discharge. Service connection for his lumbar spine condition was granted with an evaluation of 40 percent and service connection for sleep apnea condition with an evaluation of 50 percent by rating decision in February 2008. The combined evaluation for all of the Veteran’s service-connected disabilities was 80 percent as of September 1, 2007 and the Veteran met the schedular criteria for TDIU. The next question is whether the Veteran’s service-connected disabilities prior to June 2, 2009 rendered him unable to obtain or maintain substantially gainful employment. The Board concludes that they did not. The record shows that the Veteran stated in his 2013 that he was employed until the end of May 2009. The record does not support, nor does the Veteran contend that he was not employed prior to June 2009. The claims file reflects that VA subsequently filed a claim for an increased evaluation of his lumbar spine condition in October 2009. The March 2010 rating decision confirmed and continued the 40 percent low back evaluation based on a November 2009 VA examination report. The Veteran filed a notice of disagreement in September 2010, and submitted an award letter dated in August 2010, showing that the Social Security Administration had granted disability benefits based on his lumbar spine condition effective June 1, 2009. A VA examination dated in September 2011, did not show that an increased evaluation was warranted for the Veteran’s lumbar spine condition. The examiner did note that the Veteran had to cease working in 2009 due to his chronic back disorder. In February 2012, the Veteran filed a claim for TDIU. A November 2012 VA examination included the examiner’s opinion that his low back condition prevents physical and sedentary work because the Veteran reported severe pain with any activity. A January 2013, rating decision granted TDIU effective February 2012 and a subsequent November rating decision granted the Veteran’s TDIU June 2, 2009. Since, that was received within one year of the award of Social Security benefits, the RO granted an earlier effective date for the Veteran’s TDIU to June 2, 2009, the day after the effective date of the Social Security grant. The Board finds that although the Veteran met the schedular criteria in 2007, the weight of the evidence suggests that he was able to obtain and maintain substantially gainful employment until June 2009. Therefore, the earliest date he met the schedular criteria and was unable obtain or maintain substantially gainful employment was June 2, 2009, as evidenced by the Veteran’s statements, SSA grant and November 2012 VA examination. Accordingly, an effective date prior to July 2, 2009 for the assignment of TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.