Citation Nr: 21000256 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-08 962 DATE: January 4, 2021 ORDER Entitlement to an increased rating for a left elbow disability based on limitation of flexion is dismissed. Entitlement to an increased rating for a left elbow disability based on supination/pronation is dismissed. Entitlement to an increased rating for a left elbow disability based on limitation of extension is dismissed. Entitlement to an effective date prior to April 5, 2018, for a grant of total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision on the issue on appeal, the Veteran requested that his appeal of the issue of an increased rating for a left elbow disability based on limitation of flexion be withdrawn. 2. Prior to the promulgation of a decision on the issue on appeal, the Veteran requested that his appeal of the issue of an increased rating for a left elbow disability based on supination/pronation be withdrawn. 3. Prior to the promulgation of a decision on the issue on appeal, the Veteran requested that his appeal of the issue of an increased rating for a left elbow disability based on limitation of extension be withdrawn. 4. It is not factually ascertainable that the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment one-year prior to April 5, 2018. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to an increased rating for a left elbow disability based on limitation of flexion have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to an increased rating for a left elbow disability based on supination/pronation have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of entitlement to an increased rating for a left elbow disability based on limitation of extension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. An effective date prior to April 5, 2018, is not warranted for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2009 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for the Veteran’s left elbow disability based upon limitation of flexion. Thereafter, he perfected an appeal as to the propriety of the assigned rating for such disability. In an October 2017 decision, the Board denied increased ratings for the Veteran’s left elbow disabilities throughout the period on appeal. Thereafter, he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s decision to the extent that it denied increased ratings for the Veteran’s left elbow disabilities prior to February 10, 2017, and failed to assume jurisdiction over the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The appeal was previously before the Board in January 2019. At that time, the claims were remanded for additional development. Increased Rating 1. Entitlement to an increased rating for a left elbow disability based on limitation of flexion 2. Entitlement to an increased rating for a left elbow disability based on supination/pronation 3. Entitlement to an increased rating for a left elbow disability based on limitation of extension A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a September 2020 correspondence, the Veteran’s representative indicated that the Veteran wished to withdraw the above-captioned claims for an increased rating for his left elbow disability. Because the Veteran, through his representative, has clearly indicated his wish to withdraw the issues, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the Board does not have jurisdiction to review this issue and it is therefore dismissed. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 5, 2018 The Veteran’s claim for a TDIU was granted in July 2020 rating decision, effective April 5, 2018, the date of the claim. He contends that a TDIU was warranted prior to this date. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). As of February 10, 2017, the Veteran was service-connected for ununited fracture, medial epicondyle, left humerus to include degenerative changes in the left elbow with limitation of extension; limitation of flexion in the left elbow; and limitation of supination and/or pronation in the left elbow, for a combined rating of 70 percent. The Board notes that the Veteran's left elbow disabilities arise out of common etiology and for TDIU purposes they may be treated as one single disability rated as 70 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. Accordingly, the percentage requirement for TDIU, i.e. a single service-connected disability ratable at 60 percent or more, are met as of February 10, 2017. An application for a TDIU is considered a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulations that provide, in pertinent part, that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding the effective dates of increased ratings applies in circumstances where the 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. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 31-32. VA received the Veteran's claim for an increased rating for a TDIU in relation to his left elbow disabilities on April 5, 2018. Thus, the earliest effective date for TDIU therefore could be either April 5, 2018, or up to one year before. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Thus, the Board will examine whether it was factually ascertainable that a TDIU was warranted back to April 5, 2017, one year prior to the date of the Veteran’s claim for a TDIU in relation to his increased ratings for his left arm disabilities. Unfortunately, there is no medical evidence of record that addresses the period from April 5, 2017 to April 5, 2018. The VA examination conducted in closest proximity to this period was in February 2017. At that time, the examiner indicated that the Veteran’s left elbow disability did not impact his ability to perform any occupational task. The Board also notes VA examinations conducted in April 2018 and February 2020, which formed the evidentiary basis of the Veteran’s award of a TDIU. While the examiners at that time found a significant impact on employment due to the Veteran’s left elbow disability, there was no indication that such an impact dated back to the one-year period prior to the filing of the Veteran’s claim. Without objective medical evidence for the period in question, it is not factually ascertainable that the Veteran’s left elbow disability rendered him unable to secure or follow substantially gainful employment prior to April 5, 2018. For the reasons discussed herein, the proper effective date is the date of the claim, which is April 5, 2018. The benefit of the doubt doctrine does not apply in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.