Citation Nr: 20021260 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-48 141 DATE: March 25, 2020 ORDER An effective date of October 1, 2009 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran was unable to maintain or secure substantially gainful employment as a result of his service-connected disabilities since October 1, 2009. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 1, 2009 for the grant of a TDIU have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from October 1987 to October 1991 and from June 1999 to September 2009, as well as in the U.S. Marine Corps Reserves from February 1993 to April 1993. The Veteran was scheduled for a May 2019 Board hearing, but he did not attend and did not request to reschedule his hearing. Therefore, the hearing request is deemed to have been withdrawn. Entitlement to an effective date prior to October 30, 2014 for the grant of a TDIU is denied. The Veteran maintains entitlement to an effective date prior to October 30, 2014 for the grant of a TDIU. Specifically, he avers that the effective date should be October 2009, immediately following separation. The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. The Veteran filed claims for service connection in May 2009 prior to separation from his second period of service. The Veteran was granted service connection for a lumbar spine disability, radiculopathy of the left fourth and fifth nerve root, right-sided epididymis with epididymal pain and benign prostatic hypertrophy, hypertension, a left ankle disability, a right ankle disability, a right knee disability, a right shoulder disability, a fracture of the right thumb, a right forearm scar post molectomy, a posterior neck scar post excision of a benign melanotic nodule, seborrhea and actinic keratosis, and eustachian tube dysfunction, all effective October 1, 2009, the day after separation from service. The Board finds that an inferred claim for a TDIU has been raised as of that date pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran asserted he was unemployable largely due to the lumbar spine disability, and the effective date for the grant of service connection for lumbar spine disability was October 1, 2009. The Board notes that the Veteran met the schedular requirements for TDIU since October 1, 2009. 38 C.F.R. § 4.16 (a). Further, the Board notes that the Veteran’s service-connected disabilities made him unable to maintain substantially gainful employment akin to that which he was educated and trained to perform. The evidence indicates that the Veteran completed three years of college and was trained in criminal justice administration as a court reporter. The Veteran’s orthopedic disabilities of the lumbar spine, ankles, right knee, right shoulder, and right thumb, as well as the epididymal pain which warranted the highest schedular rating for urinary frequency undoubtedly had a negative impact on the Veteran’s ability to sit for prolonged periods of time and to utilize a computer or stenotype for transcription work. These difficulties were confirmed by several lay statements from the Veteran himself and his fellow servicemen who witnessed his inability to adequately perform these duties due to increasing pain and discomfort. Thus, the Veteran met the requirements for a TDIU at that time. Accordingly, resolving all reasonable doubt in favor of the Veteran, an effective date of October 1, 2009 for the grant of a TDIU is warranted. Therefore, the claim is granted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.