Citation Nr: 21022024 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-17 301 DATE: April 14, 2021 ORDER Entitlement to an effective date earlier than August 9, 2010, for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to August 9, 2010, the Veteran did not meet the criteria for a TDIU. CONCLUSION OF LAW The criteria for an effective date prior to August 9, 2010, for the award of a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), (b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1973 to November 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in September 2018 and June 2020. In June 2020, the Board ordered the RO to have the Veteran complete a new VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to get clarification on when the Veteran was last employed. In July 2020, the RO sent the Veteran a subsequent development letter with an enclosed VA Form 21-8940, with instructions to return it within 30 days. The Veteran did not respond to this letter, and in September 2020, the RO issued a Supplemental Statement of the Case (SSOC) again denying an earlier effective date for a TDIU. Copies of this SSOC was sent to the Veteran and his representative. In September 2020, a VA employee spoke to the Veteran and his representative, and the Veteran agreed to waive the SSOC response period and return the appeal to the Board. Because the RO requested the appropriate form from the Veteran, and there is nothing in the record to suggest that the Veteran did not receive this letter, the Board finds that the RO substantially complied with the June 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once the Veteran was made aware that the RO required more information from him, it was his responsibility to provide that information if he wished to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board will therefore proceed with a decision. Entitlement to an earlier effective date for a TDIU A TDIU may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service connected disabilities. 38 C.F.R. § 4.16. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment; the impact of any non-service-connected disabilities on employability will not be considered. See 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of assigning an effective date, the grant of a TDIU is considered an award of increased disability compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009), Dalton v. Nicholson, 21, Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367 (1991). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date is the date the claim was received. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). The Veteran applied for a TDIU when he filed a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability in December 2010. On this form, he indicated that he became unemployable in January 2010, and last worked full-time in May 2010. While the record shows some conflicting evidence about the exact date the Veteran last worked, these (rough) dates appear to be the most well-corroborated. Medical records from July and September 2010 discuss the Veteran leaving work in January 2010 due to an injury, returning to work briefly in June 2010, and being either let go or resigning after his employer told him he was no longer needed full-time. In January 2011, the business the Veteran had identified as his last employer submitted a VA Form 21-4192 Request for Employment Information in Connection With Claim for Disability Benefits identifying early June 2010 as the last date the Veteran worked there, and which stated that “after being off work for an injury, [the Veteran] worked a couple of days and resigned his position.” The Board therefore finds that the Veteran was last steadily employed in January 2010, while his technical last date of employment was in June 2010. The Veteran already had a combined disability evaluation of 70 percent (for headaches, tinnitus, a hand injury, and multiple back disabilities) prior to January 2010, but these disabilities do not appear to have kept him from gainful employment. In a June 2014 statement, the Veteran recounted that while he did miss 3 to 5 days of work per month due to pain from his service-connected disabilities, he worked an average of 45 to 50 hours per week and earned roughly $1500 per month from 1995 through 2009. In fact, the Veteran reported in his December 2010 application that the most he earned in a single year of employment was in 2009. The Veteran’s medical records indicate that he stopped working in January 2010 due to a shoulder injury which had to be corrected with surgery. This shoulder injury is not service connected, nor has the Veteran ever claimed entitlement to service connection for it. Furthermore, during a September 2010 psychiatric consultation, the Veteran reported that he permanently left his job in June 2010 not because he was unable to work at the time, but because he was told that his employer no longer needed him as a full-time employee and that he would be forced to “float” between three separate stores in order to keep his job. It was after this that the Veteran’s depression began to worsen, and it is the combination of the Veteran’s depression with his service-connected physical disabilities that appears to have again made him unemployable after he recovered from shoulder surgery. An April 2016 VA examination found that the Veteran was unable to work even at a job with light physical activity “due to both physical and mental restrictions.” In an addendum opinion, the same examiner said the Veteran was unable to work due to “the combined effects of his physical disabilities rendering him unable to perform physical work and he also does not have the mental capacity to maintain any jobs in a consistent basis.” (Continued on the next page) The Veteran’s employment history shows that service-connected conditions did not prevent him from maintaining gainful employment before he developed debilitating depression, and his depression was not service-connected until August 9, 2010. Therefore, August 9, 2010 is the earliest date at which it can be said the Veteran was unemployable solely because of service-connected disabilities. See 38 C.F.R. §§ 3.341. The preponderance of the evidence being against the Veteran’s claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.