Citation Nr: 21069886 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-10 711 DATE: November 22, 2021 ORDER Entitlement to an earlier effective date of July 6, 2012, for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. A TDIU claim was pending during the course of the appeal involving the compensation claim for cold injury of the feet, which was received on July 6, 2012. There is no document in the claims file prior to that date that could be construed as a claim, formal or informal, for TDIU. Relevant AOJ adjudications regarding increased rating claims for the Veteran's service-connected knee disorders became final and do not allow for an earlier effective date. 2. The earliest date of unemployability is more than one year prior to July 6, 2012. CONCLUSION OF LAW The criteria for an effective date of July 6, 2012, for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1953 to June 1956. Entitlement to a TDIU was granted in a February 2020 rating decision, effective June 4, 2019. In a subsequent October 2020 decision, the Board granted an effective date of October 1, 2013, for TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, resulting in a July 2021 Joint Motion for Partial Remand. 1. Entitlement to an earlier effective date of July 6, 2012, but no earlier, for the award of a total disability rating based on individual unemployability (TDIU) The JMPR determined that the Board's October 2020 decision granting entitlement to a TDIU effective October 1, 2013, failed to properly address whether a TDIU was warranted prior to October 1, 2013. Specifically, the Board failed to address whether the Veteran met the schedular criteria prior to this date and an August 2006 letter from a private physician indicating that the Veteran was "totally disabled" prior to this date. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110 (a), the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. Section 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation 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. The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase 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 the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Under current regulations, the term claim means a written communication requesting a determination of entitlement or evidencing a belief under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1 (p). At the relevant time period at issue in this case, however, the term "claim" or "application" meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2012). Again, at the time period at issue in this case, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may have been considered an informal claim. In determining an effective date for an award of a TDIU, VA must make two essential determinations. It must determine (1) when a claim for TDIU was received, and (2) when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2016). In light of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that since TDIU was raised during the pendency of the compensation claim, it may be considered dating back to the effective date for the grant of service connection for cold injuries of the feet, July 6, 2012. Effective July 6, 2012, the Veteran meets the schedular criteria for a TDIU under section 4.16 (a). He is in receipt of a 30 percent evaluation for left foot cold injury, a 30 percent evaluation for right foot cold injury, and a 20 percent evaluation for right knee, for a combined evaluation of 70 percent. With consideration of the provision of section 4.16 (a) as to disabilities of the lower extremities being considered as one disability for TDIU purposes, the Veteran had one disability rated at 60 percent or more. With consideration of the JMPR and after a review of the evidence, including VA examinations during the period at issue, the Board has determined that the Veteran was unable to obtain and maintain gainful employment consistent with his education and occupational experience due to service-connected disability. The effective date of July 6, 2012 (date of receipt of compensation claim for cold injuries of the feet) is warranted for entitlement to a TDIU. An effective date prior to July 6, 2012, is not warranted. Rating decisions issued in June 2012 and September 2012 adjudicating increased rating claims for the Veteran's service-connected knee disorders were not appealed by the Veteran, and they became final. As a result, there is no basis for awarding an effective date prior to July 6, 2012, as an increased rating claim that was continuously appealed. Under applicable law and regulation, the earliest date that a claim for a TDIU can be construed is July 6, 2012. To the extent that the Veteran asserts an effective date prior to July 6, 2012, is warranted, the overall evidence supports a finding that the earliest date of unemployability is more than one year prior to the July 6, 2012 date of claim. Specifically, the August 2006 letter from the Veteran's private physician indicating that he is "totally disabled," as referenced in the JMPR. The date of claim controls as the effective date. 38 U.S.C. § 5110. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.