Citation Nr: 21007093 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-11 474 DATE: February 8, 2021 ORDER Entitlement to an effective date of October 31, 2010, but no earlier, for a total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities have at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experienced otherwise qualified him from October 31, 2010, and he has met the schedular percentage requirements for TDIU since that date, but the preponderance of evidence is against a finding that he was precluded from substantially gainful employment for which his education and occupational experienced otherwise qualified him prior to that date. CONCLUSION OF LAW The criteria for an effective date of October 31, 2010, but no earlier, for TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that adjudicated the Veteran’s increased rating claim for his service-connected back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding TDIU is an element of an increased rating claim when unemployability has been raised by the record). The Board notes a subsequent February 2019 rating decision granted TDIU, effective October 31, 2012, but the effective date of the Veteran’s award remains on appeal as element of the previously perfected appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding the effective date of TDIU remains on appeal as an element of previously perfected increased rating claim despite the award of TDIU for a portion of the appeal period). This matter was most recently before the Board in July 2020, when it was remanded to provide the Veteran an opportunity to clarify the date he stopped working due to the impairment resulting from his service-connected disabilities due to ambiguity in the record in this regard. The Veteran did not respond to two post-remand development letters sent by the Agency of Original Jurisdiction (AOJ); therefore, the Board finds there has been substantial compliance with its prior remand directives with the Veteran’s appeal now being adjudicated based on the evidence of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted in the Board’s prior remands, the Veterans Law Judge (VLJ) who held the Veteran’s initial hearing for this appeal in November 2013 is no longer with the Board; therefore, the Board will proceed without a panel decision in this case since the undersigned is the only current VLJ who has held a hearing with the Veteran. See Arneson v. Shinseki, 24 Vet. App. 379 (2012); see also January 2018 Hearing Transcript. Analysis TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The effective date for an award of increased compensation is generally the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If an increase in disability is factually ascertainable within one year prior to the receipt of the claim for increased compensation, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As noted in the introduction, the date of claim for this appeal is based on the Veteran’s February 2010 increased rating claim for his service-connected back disability. The Veteran has met the schedular percentage requirement for TDIU since the date of his February 2010 increased rating claim. The Veteran is currently entitled to TDIU, effective October 31, 2012, based on the date included on his initial May 2017 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Yet, he has asserted an earlier effective date for TDIU is warranted, explaining the day he actually stopped working as a teacher was October 31, 2010 with the initial date noted on his May 2017 VA Form 21-8940 being a typographical error. There is further inconsistent evidence regarding the date the Veteran stopped working. A VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) completed in June 2017 by the school district that employed the Veteran indicates he stopped working on May 24, 2010. The Board has sought clarification from the Veteran regarding this inconsistency, and he has reported he does not know why the school district reported the date of May 24, 2010. In a letter dated September 24, 2019, the Veteran explained he turned in his notice letter to his school’s principal at the end of September 2010 and continued to work until October 31, 2010. The Board finds the Veteran’s September 2019 letter to be the most probative evidence of record as to the material issue of when he stopped working. The Board resolves reasonable doubt in the Veteran’s favor with regard to the inconsistency between the date noted in his September 2019 letter and the date noted his May 2017 VA Form 21-8940 and finds the 2012 date noted in the May 2017 VA Form 21-8940 was the result of typographical error as claimed by the Veteran. Further, since the Board assigns the most probative value to the Veteran’s statements, the Board finds an effective date of TDIU prior to October 31, 2010, is not warranted because the weight of the evidence is against a finding that the Veteran stopped working prior to that date despite the June 2017 VA Form 21-4192 from his former employer that indicates he stopped working on May 24, 2010. In sum, the Board finds an effective date of October 31, 2010, but no earlier, is warranted because the Veteran’s credible reports establish this is the date he was no longer able to work due to the functional impairment resulting from his service-connected disabilities, and, to that extent, his appeal is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.