Citation Nr: 21009220 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-37 046 DATE: February 19, 2021 ORDER An effective date earlier than November 30, 2015 for the assignment of a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran first filed for TDIU on November 30, 2015, and the Veteran has been assigned TDIU effective November 30, 2015; and there are no and were no increased rating claims currently under appellate consideration with a period on appeal prior to November 30, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than November 30, 2015 for the assignment of TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from December 6, 1968 to September 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Appeals Regional Office. This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in January 2019, and a transcript of the hearing is of record. The Board previously disposed of this matter in May 2019. In April 2020 however, the Court of Appeals for Veterans Claims (Court) vacated the Board’s decision and remanded the matter back to the Board for further consideration. In November 2020, the Board remanded this matter for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. The Board notes that the November 2020 Board decision also remanded claims for service connection for bilateral hearing loss and tinnitus for further development. In December 2020, the RO granted service connection for bilateral hearing loss and tinnitus. This is considered a full grant of the Veteran’s requested prayer of relief, and the Board shall not address this matter any further. The Board notes that, in December 2019, the Veteran filed a notice of disagreement. This appeal with be disposed of under a separate Board decision pursuant to the Appeals Modernization Act (AMA). An effective date earlier than November 30, 2015 for the assignment of TDIU is denied. At issue is whether the Veteran is entitled to an effective date earlier than November 30, 2015 for the assignment of TDIU. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date for the assignment of TDIU. The Veteran first filed for TDIU on November 30, 2015, and, in December 2020, the RO granted service connection effective November 30, 2015. The effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran has been assigned TDIU effective the date the claim was received, and the Veteran cannot be assigned an earlier disability rating. The Board notes that a claim for TDIU may also be raised by the record of during the course of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Nevertheless, there are there are no and were no increased rating claims currently under appellate consideration with a period on appeal prior to November 30, 2015 Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an earlier effective date for the assignment of TDIU. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an earlier effective date for the assignment of TDIU is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.