Citation Nr: 21009556 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-08 874 DATE: February 22, 2021 ORDER Entitlement to an effective date earlier than May 8, 2013 for the award of service connection for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to a TDIU arose as part and parcel of an increased rating claim stemming from a May 8, 2013 claim for service connection for posttraumatic stress disorder (PTSD), ischemic heart disease, tinnitus, hearing loss, a skin condition, and diabetes mellitus. 2. Prior to May 8, 2013, the Veteran had no service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date prior to May 8, 2013 for the award of a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING SAND CONCLUSION The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an effective date earlier than May 8, 2013 for the award of service connection for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. TDIU is considered a rating and not a disability. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). However, when determining the appropriate effective date for an award of TDIU, the effective date of such an award cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is predicated. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). As an award of TDIU must be based on a service-connected disability or disabilities, the effective date for the award of TDIU cannot, as a matter of logic, predate the effective date for the award of service connection for the disability or disabilities which result in the Veteran’s inability to gain or maintain substantially gainful employment. Id.; see also Ross v. Peake, 21 Vet. App. 528, 534 (2008), Canady v. Nicholson, 20 Vet. App. 393, 398 (2006). In this case the Veteran filed a formal claim for service connection for PTSD, ischemic heart disease, tinnitus, hearing loss, a skin condition, and diabetes mellitus, which was received by the RO on May 8, 2013. Service connection for PTSD, ischemic heart disease, tinnitus, and hearing loss were granted in an October 2013 rating decision effective May 8, 2013. On October 24, 2013, the Veteran filed a formal claim for TDIU based on his service-connected PTSD, ischemic heart disease, and tinnitus. The RO denied increased ratings for PTSD, ischemic heart disease, and tinnitus, and TDIU in an October 2014 rating decision. In a February 2016 rating decision, the RO found that May 8, 2013 was the date of claim and that the claim was continuously prosecuted since, and the Veteran was awarded TDIU based on his ischemic heart disease and PTSD effective May 8, 2013. Based on the foregoing, an effective date earlier than May 8, 2013, for the award of a TDIU is not possible in this case. As noted above, the effective date for award of service connection for the disabilities underlying the Veteran’s award of TDIU is May 8, 2013. By its nature, entitlement to TDIU is dependent on the presence of at least one service-connected disability which results in the inability of the Veteran to obtain or maintain substantially gainful employment. Delrio, 32 Vet. App. at 248; see 38 C.F.R. § 4.16 (a)(b). As service connection was not in effect for any of the disabilities underlying the award of TDIU prior to May 8, 2013, or any of the Veteran’s service-connected disabilities for that matter, it is not possible to award an earlier effective date for TDIU. Id. As the Veteran is not service connected for any disabilities prior to the currently assigned effective date of May 8, 2013, the claim must be denied as a matter of law. Delrio, 32 Vet. App. at 248; see Sabonis v. Brown, 6 Vet. App. 426, 42930 (1994). For these reasons, the Board finds that an effective date prior to May 8, 2013 for the award of TDIU is not warranted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.