Citation Nr: 21002949 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-60 330 DATE: January 19, 2021 ORDER An effective date earlier than May 3, 2012 is denied. FINDING OF FACT Prior to May 3, 2012, the Veteran was employed on a full-time basis; thus his service-connected disabilities did not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW An effective date earlier than May 3, 2012, for the award of a TDIU, is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968, including service in the Republic of Vietnam from December 1966 to August 1967. In September 2020, the Board remanded the issue of entitlement to a TDIU prior October 31, 2019. In a November 2020 rating decision, the RO granted an earlier effective date of May 3, 2012 for the grant of individual unemployability. Entitlement to an effective date earlier than May 3, 2012 for the grant of a TDIU. Although the veteran perfected a timely appeal challenging the RO’s assignment of May 3, 2012, as the effective date of his TDIU award, he has offered no specific contentions in support of this claim. In general, the effective date of an award of disability compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). An exception to that rule regarding increased ratings applies, however, under 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 within one-year prior to the claim, the increase is effective as of the date the increase was “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); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000). Here, the evidence uniformly shows that the Veteran was employed on a full-time basis as a maintenance supervisor until May 2012. This evidence includes not only the Veteran’s October 2019 VA Form 21-8940, “Veteran’s Application for Increased Compensation Based on Unemployabilty, but also the VA 21-4192, Request for Employment Information in Connection with Claim. Thus, because the undisputed facts show that the Veteran was employed on a full-time basis prior to May 3, 2012, there is no entitlement under the law to the benefit sought. Accordingly, his claim must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.