Citation Nr: 21013814 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-45 564 DATE: March 10, 2021 ORDER Entitlement to an earlier effective date of June 10, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. VA received an original claim for, in pertinent part, an increased rating for anatomical loss of right eye (right eye condition) on June 10, 2016. 2. The Veteran reported that he resigned from his job in 2015 due to his eyesight in an October 2016 VA examination. 3. In December 2016, the RO issued a rating decision denying entitlement to a TDIU. However, the RO has not yet adjudicated the Veteran’s increased rating claim for a right eye condition, and the claim is still pending. 4. The Veteran has continuously prosecuted his claim of entitlement to an increased initial rating for a right eye condition and the inextricably intertwined issue of entitlement to a TDIU since the filing of his original claim in June 2016. 5. Effective June 10, 2016, the Veteran met the schedular criteria for a TDIU, and his service-connected conditions prevented him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of June 10, 2016, for the grant of a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.2500, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1976 to February 1979. In a November 2019 decision, the Board of Veterans’ Appeals (Board), in pertinent part, granted the Veteran’s claim for a TDIU with an effective date of June 29, 2018. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, while the case was pending at the Court, the parties signed a Joint Motion for Partial Remand (JMPR), requesting that the Court vacate the Board’s decision to the extent of the June 29, 2018 effective date for a TDIU. The Court subsequently granted the JMPR in a September 2020 order. The matter has now been returned to the Board for further consideration. Earlier effective date for a TDIU The Veteran is currently in receipt of a TDIU, effective June 29, 2018. He contends that he is entitled to an earlier effective date for the grant of a TDIU. The assignment of effective dates is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In particular, determining the appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and (2) when the increase in disability actually occurred. 38 C.F.R. § 3.400(o)(2). TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). In this case, the Veteran first indicated that he was unable to be gainfully employed in an October 2016 VA examination after he filed a claim, in pertinent part, for an increased rating for his right eye condition in June 2016. In December 2016, his TDIU claim was denied by the RO. He appealed the denial in October 2017. A statement of the case (SOC) was issued in August 2018, and the Veteran filed his substantive appeal in September 2018. After this point, the Veteran was issued a supplemental statement of the case (SSOC) in March 2019, and the Board issued a decision in November 2019, which the Veteran appealed to the Court as discussed above. However, to this date, the RO has not adjudicated the Veteran’s increased rating claim for his right eye condition. Therefore, the increased rating claim for a right eye condition has been pending for the entire period since the Veteran filed an application for benefits in June 2016. See 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009) (a pending claim is an application, which has not been finally adjudicated); see also Ingram v. Nicholson, 21 Vet. App. 232, 249 (1999) (The pending claims doctrine provides that a claim remains pending in the adjudication process – even for years – if VA fails to act on it.). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16(a). The Veteran has been service connected for persistent depressive disorder (acquired psychiatric disorder), rated at 70 percent from February 1, 2016; a right eye condition, rated at 40 percent from September 24, 2015; tinnitus, rated at 10 percent from June 6, 2016; as well as for right upper eyelid scar and bilateral hearing loss, both of which are noncompensable at this time. His combined disability rating has been 80 percent from February 1, 2016. Accordingly, the Veteran meets the schedular TDIU criteria from February 1, 2016. The remaining (and dispositive) question is whether his service-connected disabilities rendered the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience prior to June 29, 2018. See Hatlestad v. Brown, 5. Vet. App. 524, 429 (1993). The Veteran’s formal June 2018 TDIU application shows that he asserts he became unable to work due to his acquired psychiatric disorder. The Veteran reported that he completed four years of high school and listed aircraft maintenance as his education/training. He last worked full-time as a custodian in June 2015. The Veteran underwent an eye conditions VA examination in December 2015, in which the examiner noted that the Veteran right eye impacted his ability to work. It was difficult for the Veteran to see computer screens and that the Veteran has no depth perception from loss of his right eye. In October 2016, the Veteran appeared for a mental disorders VA examination. He reported that he resigned as a machine operate due to his eyesight in 2015. A buddy statement, provided by N.T., was associated with the Veteran’s claim file in March 2016. N.T. stated that she met the Veteran prior to his vision loss, and he was working and living a productive life. However, after he lost his sight, he lost his job because he could no longer perform his duties at work. He also lost his driving privilege due to the loss of his peripheral vision. Reading and writing had also become an issue. Though the Veteran tried to clean and vacuum, N.T. stated that she had to reclean because of the Veteran’s vision. The Veteran was afforded another eye conditions VA examination in October 2016, and the examiner found that the Veteran eye condition did not impact his ability to work. However, the Board notes that this examination pertained to the Veteran’s left eye condition, which is not service-connected, so the examiner appeared to give an opinion for the Veteran’s left eye, not his service-connected right eye condition. The Board reiterates that effective dates of awards of VA disability compensation are assigned based on the date the claim is received or the date entitlement arose, whichever is later. Here, the Veteran’s increased rating claim for a right eye condition was received by the VA on June 10, 2016 and has been pending since that time. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, the Board finds it appropriate to grant the Veteran’s claim for an earlier effective date to June 10, 2016. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.