Citation Nr: 21026379 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 08-38 991 DATE: April 30, 2021 ORDER Entitlement to an effective date earlier than November 19, 2010 for a total disability based upon individual unemployability (TDIU) is denied. FINDING OF FACT Prior to November 19, 2010, the Veteran’s combined rating was 80 percent with at least one disability at 50 percent, but his service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU prior to November 19, 2010 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.400, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 2003 to August 2007. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a rating decision issued by Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2020. A copy of the transcript has been associated with the claims file and reviewed accordingly. The Veteran asserts he is entitled to TDIU prior to November 19, 2010 based upon his service-connected disabilities. In this regard, the Veteran has variously attributed his service-connected unspecified anxiety disorder, traumatic brain injury (TBI), and irritable bowel syndrome (IBS) to his inability to work as set out in his December 2008, November 2010, and November 2013 VA Forms 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). In his February 2009 VA TDIU examination, he indicated that the frequency of his IBS symptoms and having to go to the restroom would prevent him from engaging in substantially gainful employment. He also testified at his October 2020 Board hearing that, although he was shown to have attended and successfully completed college classes during the time period prior to November 19, 2010, he was given special accommodations that would not be readily available in a work environment due to his psychiatric and TBI disabilities. The Veteran provided examples of having the assistance of a case manager and being allowed extra time to complete assignments based upon his disabilities. The pertinent criteria for the effective date of an award for an increase in disability compensation, of which TDIU is considered a type of increase, are found in 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. §§ 3.400 (o)(1), 3.400(o)(2). However, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. Otherwise the general default rule for earlier effective dates applies. See 38 C.F.R. § 3.400 (o)(1); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case, in the context of claims for an earlier effective date for an increased rating: (1) if an increase in disability occurs after the claim is filed, the effect date for the increase is the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); or (2) if an increase in disability precedes the claim by a year or less, the effective date is assigned the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the effective date is assigned the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, the Veteran initially filed a claim for TDIU in December 2008. Notably, that claim was denied in a March 2009 rating decision, finding that the Veteran did not meet the schedular criteria for TDIU (his claim for entitlement to a TBI going back to August 12, 2007 had not yet be granted and would not be so until a September 2011 rating decision granting service connection and a subsequent January 2017 rating decision which granted an earlier effective date back to the August 2007 claim) and the facts of the Veteran’s case did not show that he was unemployable. The Veteran again filed a claim for TDIU in November 2010. This claim was again denied in a September 2011 rating decision without any explanation. However, one day later, another rating decision was issued granting entitlement to TDIU effective March 15, 2011, again with no explanation. While this was taking place, the Veteran had an appeal before the Board for an increased rating for his service connected psychiatric disorder, which arose from the original 2007 rating action, awarding service connection. In a 2012 Decision, the Board noted the appeal included the issue of entitlement to TDIU benefits. The TDIU claim was remanded, at which time the Regional Office interpreted it as a claim for an earlier effective date for the award of TDIU benefits prior to March 2011. Thereafter, in a January 2017 rating action, the RO assigned an effective date for the TDIU benefit from November 2010. The rationale appears to have been that was the date of the most recent formal claim for the benefit prior to the Board’s Remand and prior to the effective date that had already been assigned. In addition, the Veteran met the schedular criteria for the benefit at that time. However, as the facts now stand, the Veteran met the schedular criteria for TDIU benefits effective from the first day after his service discharge in August 2007. Likewise, if the TDIU claim is construed as arising from the appeal of the initial 2007 rating of his psychiatric disability, (as the Board did in its 2012 decision), TDIU benefits could be awarded as early as the first day after his service discharge, or the first date entitlement arose. Therefore, the question becomes whether the Veteran met the criteria for entitlement to a TDIU at any time from August 12, 2007 to November 19, 2010. TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). Prior to November 19, 2010, the Veteran was in receipt of a 50 percent rating for unspecified anxiety disorder, a 50 percent rating for headaches due to TBI, a 10 percent rating for bilateral conjunctivitis with left eye cataract, a 10 percent rating for tinnitus, a 10 percent rating for IBS, a 10 percent rating for TBI, and a 0 percent rating for bilateral hearing loss. He had a combined rating of 80 percent from November 19, 2010. As such, schedular TDIU was applicable. The analysis then moves to the question of whether the Veteran’s service-connected disabilities alone rendered the Veteran incapable of obtaining and/or maintaining substantially gainful employment. However, in this regard, the record does not demonstrate that the Veteran was factually unemployable prior to November 19, 2010. The record reflects that the Veteran participated in the VA vocational rehabilitation and employment (VR&E) program between 2007 and 2010. In his January 2008 intake, it was noted that the Veteran had serious barriers to employment and that his ability to overcome them was uncertain. The Veteran was noted as having a high school diploma. The Veteran was further noted to have had previous work experience as a government intern, a security contractor, and 6 weeks of community college on military scholarship. The Veteran was shown as attending the University of Minnesota with a standard course load commencing in 2008. In a May 2008 assessment, it was noted that the Veteran had some memory problems, but nothing that would prevent obtaining gainful employment. The Veteran even expressed an interest in running for public office. If he were unsuccessful at this, he planned to attend law school instead. There was nothing in the findings that indicated that these goals were not attainable at that time. The assessor closed by saying that the Veteran would be capable of independent job search and employment when the time came. In April 2010, it was noted that the Veteran was graduating from college in May 2010 and was looking to go to graduate school. The Veteran’s VR&E was discontinued in May 2010 due to the Veteran’s election of Chapter 33 benefits instead. However, during the entire time period he was involved, it appeared that the Veteran was actively working to prepare for employment and provided no indication that he would have been unemployable at any time prior to November 19, 2010. Moreover, the medical evidence of record does not reflect that the Veteran’s service-connected disabilities render him unemployable. In this regard, the Board acknowledges the November 2007 VA audiological examination opinion which found that the Veteran’s hearing loss and tinnitus disabilities could interfere with his ability to hear at a place of employment, but they do not prevent employment. The November 2007 psychiatric and TBI opinions found that the Veteran had no cognitive problems and he was attending university. He suffered headaches, delayed sleep, irritability, and occasional dizziness. Despite this, he was still able to conduct childcare, play basketball, and was able to do activities of daily living, including cooking, cleaning, laundry, dish washing, and grocery shopping, all independently. There were no effects on substantially gainful employment noted. The Veteran’s December 2007 VA eye examination found no effects on employment due to the severity of his condition. The results of the January 2009 VA psychiatric examination found that the Veteran was capable of functioning in social, occupational, and academic areas. It was further noted that his non service-connected personality disorder may cause disruption at times. Finally, in his February 2009 VA TDIU examination, it was noted that the Veteran claimed his IBS and frequent bathroom usage prevented gainful employment. In this regard, the Veteran noted missing classes at times due to flare-ups. However, there was nothing that indicated this was more than regular absenteeism seen in a normal job setting, particularly since the Veteran was shown as being able to successfully complete his classes. It was also noted that the Veteran was independent in activities of daily living. The examiner found that the Veteran’s condition did not render him unemployable, as he could be managed with easy restroom access. No other disabilities shown to interfere with employability While the Board does not doubt that the service-connected disabilities interfere with employment, the greater weight of the evidence does not show the Veteran’s service connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to November 19, 2010. Given that the evidence does not show the Veteran is unemployable prior to November 19, 2010, an earlier effective date for the award of TDIU benefits is not warranted, and the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.