Citation Nr: 20004178 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-14 134 DATE: January 16, 2020 ORDER Entitlement to an effective date of April 26, 2016, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT It was factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities as of April 26, 2016. CONCLUSION OF LAW The criteria for an effective date of April 26, 2016, but no earlier, for entitlement to TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned at a February 2019 Board hearing on the issue of entitlement to an earlier effective date for the grant of TDIU. The Board notes that Veteran has perfected an appeal of the claims for service connection for degenerative arthritis of the lumbar spine and an increased rating for left arm scar. However, in his April 2016 substantive appeal for lumbar spine and left arm scar claims, the Veteran indicated that he wanted a Board hearing by live videoconference. See April 2016 VA From-9. To date, the Veteran has not been afforded the Board hearing; thus, the Board declines jurisdiction of the claims for increase rating for lumbar spine and service connection for left arm scar. Earlier effective date for TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an evaluation and award of 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 the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date” (emphasis added). Thus, where a claim for an increased rating is received more than a year after the factually ascertainable date of increase in disability, the effective date is the date of receipt of claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). 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. 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. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). A total disability rating 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 service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In a January 2017 rating decision, the AOJ granted the Veteran entitlement to TDIU, effective September 21, 2016. The Veteran seeks an earlier effective date for TDIU as of April 26, 2016, the date of claim. At his February 2019 Board hearing, through his representative, the Veteran testified that he filed claims for TDIU on April 26, 2016, and on September 21, 2016. See February 2019 Board Hearing Tr. at 2 and 3. First, the Board finds that the Veteran filed an April 26, 2016, formal claim for TDIU. See April 26, 2016, VA from 21-8940. Second, at the time of his April 26, 2016, TDIU claim, the Veteran was service connected for triceps and brachioradialis muscle injury (MG V and MG VI), rated 30 percent disabling as of January 1, 2016; extensors of the wrist, fingers, and thumb muscle injury, rated 20 percent disabling as of February 3, 2013; ulnar neuropathy at the left elbow (ulnar nerve), rated 30 percent as of December 10, 2015; ulnar neuropathy of the left elbow (left forearm limitation of flexion), rated 10 percent as of December 10, 2015; ulnar neuropathy of the left elbow (supination and pronation), rated 10 percent as of December 10, 2015; left arm scars, rated noncompensable as of February 3, 2013; and ulnar neuropathy of the left elbow (limitation of extension), rated noncompensable as of April 26, 2016. His combined rating was 70 percent. As he had a combined rating of 70 percent and a single disability rated 40 percent or more, to include multiple disabilities of the same body system combinable as a single; thus, he met the schedular requirements for TDIU at that time. 38 C.F.R. § 4.16(a). As such, the remaining question is whether he was precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience as of April 26, 2016. 38 C.F.R. §§ 3.340, 3.341, 4.16. Review of the record shows that January 2016 VA elbow and forearm, peripheral nerves, as well as muscle injuries examination reports indicated that the Veteran’s conditions impacted his ability to work because he had an extremely limited ability to use the left upper extremity for any activity. The May 2016 VA muscle injuries examination report revealed that the Veteran had spasms that made driving too difficult for him because his arm “locked up” and is unable to drive. The Veteran had difficulty gripping objects and lifting or holding with the left hand. The Veteran was no longer able to work as a driver as he was unable to lift and carry items with his left hand/arm. The May 2016 VA peripheral nerves examination report indicated that the Veteran’s condition impacted his ability to work because pain, numbness, and tingling of left arm/hand limited his ability to hold objects, carry objects, and/or grip objects. The Board finds the totality of the evidence of record indicates it was factually ascertainable the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, in combination, as of April 26, 2016. The Veteran has high school diploma and his military occupational specialty (MOS) was an ammunition helper. See November 2016 VA examination report and Form DD-214. The evidence of record indicates the Veteran has not worked since he left his job in 2013 from the real estate business due to declining health. See November 2016VA examination report. Accordingly, the Board finds the totality of the evidence of record indicates the Veteran’s physical limitations due to his service-connected disabilities, when considered with the Veteran’s education and work history, combined rendered the Veteran unable to obtain and maintain a substantially gainful occupation. Therefore, the Board finds entitlement to TDIU was factually ascertainable as of April 26, 2016, the date of claim. Therefore, given the totality of the evidence, an effective date of April 26, 2016, but no earlier, is awarded for the assignment of a TDIU. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.