Citation Nr: 19124780 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 07-03 480 DATE: April 2, 2019 ORDER Entitlement to an effective date earlier (EED) of February 6, 2006, for a total disability rating based on individual unemployability due to service connected disabilities (TDIU), is granted. FINDING OF FACT The Veteran original claim for entitlement to TDIU was received on February 6, 2006. The Veteran's service-connected disabilities had precluded him from substantially gainful employment from February 6, 2006. CONCLUSION OF LAW The criteria for an effective date of February 6, 2006, for entitlement to TDIU have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to May 1967 and from May 1967 to January 1979. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). With regard to the representative's July 2018 correspondence, the Board notes that this appeal has been assigned a docket number of 07-03 480 in accordance with Vargas-Gonzalez v. Principi, 15 Vet. App. 222 (2001). The Veteran was originally denied entitlement to TDIU in a July 2006 rating decision. In January 2010, the Board remanded the case for additional development. The case returned to the Board in May 2012 at which time the claim for entitlement to TDIU was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In June 2013, the Court issued a memorandum decision which vacated and remanded the Board's May 2012 decision. In March 2014 the Board remanded the issue again for further development. In an April 2015 rating decision, the RO granted TDIU, effective October 14, 2013. The Veteran appealed that decision. Unfortunately, the Veteran died in July 2018 during the pendency of the appeal. (See August 2018 Social Security Administration Data). The claim was subsequently dismissed by the Board in August 2018 for lack of jurisdiction. In February 2019, the appellant was determined to be eligible for substitution. See 38 U.S.C. § 5121A (a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran's claims to completion. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to an effective date earlier (EED) than October 14, 2013, for TDIU, for accrued purposes Legal Criteria Effective Dates The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defines substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-1MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis Here, the claim originates from July 2006 rating decision denying the Veteran’s claim for TDIU. As noted above, the claim was remanded by the Board in 2010 and subsequently denied in 2012. The May 2012 Board denial was vacated in June 2013 by the Court. In compliance with the Court’s order, the Board remanded the issue in March 2014. Subsequently, the RO granted the Veteran TDIU effective October 14, 2013. In the March 2014 rating decision granting TDIU, the RO based the TDIU effective date on the October 14, 2013 private assessment which concluded that the Veteran was unemployable due to service-connected disabilities from at least 2002. However, the RO explained that while the Veteran had met the schedular criteria for TDIU as early as September 23, 2002, TDIU was not met on a factual basis. The RO relied on the Board’s 2012 vacated decision; which found that at the time of the decision, there was no medical evidence of record indicating the Veteran’s service-connected disabilities precluded him from employment. Importantly, the private vocational assessment was submitted after the vacated May 2012 Board decision and during the pendency of this appeal. Here, the Board finds that an effective date earlier than October 14, 2013, for a TDIU, for accrued purposes is warranted. Importantly, in February 2006 the Veteran submitted a Veteran’s Application for Increased Compensation Based on Unemployability. As noted, VA has conceded that the Veteran had met the schedular criteria for TDIU throughout the pendency of this claim. Additionally, the October 2013 private vocational assessment concluded that the Veteran was unemployable due to service-connected disabilities from at least 2002. Thus, the Board finds that the criteria for TDIU has been met on a factual basis prior to October 14, 2013. Again, the effective date of an award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Here, the Veteran met the schedular and factual criteria for TDIU prior to October 14, 2013. Further, the Veteran’s claim for TDIU was received February 6, 2006. In giving the benefit of the doubt to the appellant, the Board finds that the Veteran had been unable to secure or maintain a substantially gainful occupation as a result of service-connected disability, throughout the appeals period and until his death. Therefore, entitlement to a TDIU prior to October 14, 2013 is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel