Citation Nr: 21005536 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 180102-2610 DATE: February 1, 2021 ORDER Entitlement to an earlier effective date than June 1, 2015 for the grant of a total disability rating based upon unemployability is denied. FINDING OF FACT The Veteran was granted a TDIU at the earliest possible date, on June 1, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than June 1, 2015 for entitlement to a TDIU have not been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1954 to September 1956. The Board notes that the rating decision on appeal was issued in June 2016. In June 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). The Veteran selected the Higher-Level Review lane when he opted-in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the December 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Veteran’s claim was most recently before the Board in September 2019 wherein the claim was denied. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020, through acceptance of a Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded it for further action. The JMR directed the Board to discuss whether an earlier effective date was warranted for TDIU as related to the Veteran’s claim for an initial compensable rating for bilateral athlete’s foot. As explained in the JMR, the Veteran testified in an April 2011 hearing that his athlete’s foot disability “affected his ability to be employed.” Given this statement, the Veteran asserts a claim for a TDIU was expressly raised or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009). The Board has considered the procedural history of the Veteran’s claim for an initial rating for bilateral athlete’s foot. The claim was before the Board most recently in March 2012 wherein it was remanded for additional development. A Supplemental Statement of the Case (SSOC) was issued in October 2012; however, this claim was not returned to the Board. Given all of the above, at this time, the Board cannot adjudicate entitlement to TDIU, under Rice, for the Veteran’s claim for an initial compensable rating for bilateral athlete’s foot. The Board will undertake administrative action to determine whether the Veteran intended his June 2018 election to opt into the RAMP review process to include his then-pending appeal of a higher initial rating for Athlete’s foot. Entitlement to TDIU under Rice will be addressed in that appeal, when it is determined what system it is to be adjudicated in – i.e., legacy or AMA. EARLIER EFFECTIVE DATE Entitlement to an earlier effective date for a TDIU The Veteran contends that he should be awarded a TDIU prior to June 1, 2015 because evidence shows that he has been unemployable since 2004. The Veteran was awarded a TDIU on June 1, 2015 because that was that date on which his disabilities combined to a 70 percent total rating. The June 2018 rating decision did not identify any favorable findings. TDIU ratings for compensation may be assigned, where the schedular rating is less than total (100 percent), 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. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran was granted a TDIU on a schedular basis at the earliest possible date, June 1, 2015, when his disabilities combined to form a 70 percent rating. Therefore, he is not entitled to an earlier effective date for a TDIU on a schedular basis. The Veteran applied for a TDIU in November 2014. The Veteran was already rated at 100 percent disabled for his left knee disability from April 28, 2014 to June 1, 2015. Therefore, from the date of his application to June 1, 2015, he was already in receipt of a total disability. Further, the Veteran did not have another disability or combination of disabilities independently rated at 60 percent, such that an award of special monthly compensation based on housebound criteria would be met. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). The Veteran argues that his claim has been on appeal since 2001 and therefore the Board should consider TDIU back to 2004 when the Veteran’s disabilities precluded employment. The Veteran raises Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) in support of his proposition (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). However, unemployability has not been raised in the context of an increased rating claim that was before the Board, such that TDIU was on appeal through operation of the Rice case. The Veteran did not raise unemployability until his November 2014 application for the same, at which time he listed his knees and eyes as barriers to employment. At that time, there were no pending appeals for increased ratings for his knees or his eyes. There were prior pending service connection claims and convalescence claims, but that does not give the Board jurisdiction for TDIU under Rice. Further, unemployability was not raised in any previous increased rating claims. The Veteran’s most recent claims for an increased rating for an eye condition and bilateral knees were never appealed. Therefore, there is no basis for the Board to find an earlier period during which TDIU was pending. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.