Citation Nr: 21026640 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 10-11 245A DATE: May 3, 2021 ORDER An earlier effective date of July 21, 2004, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU), is granted. FINDINGS OF FACT 1. On July 21, 2004, the Department of Veterans Affairs (VA) Regional Office (RO) received the Veteran's claim for unemployability, which was also construed as a claim for increased ratings for the Veteran's service-connected disabilities. 2. The Veteran met the threshold percentage requirements for an award of TDIU under 38 C.F.R. § 4.16(a) as of July 21, 2004, and there is no reason to conclude that the Veteran could engage in substantially gainful employment at any point during the period from July 21, 2004, to April 23, 2008. CONCLUSION OF LAW The criteria for an effective date of July 21, 2004, for the award of a TDIU due to service-connected disabilities are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400; see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1960 to December 1969 and in the United States Air Force from July 1971 to July 1975. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board denied an effective date earlier than April 23, 2008, for the award of a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2018 Memorandum Decision, the Court vacated the Board's June 2017 decision on the TDIU claim. In an August 2019 decision, the Board again denied the claim and the Veteran again appealed to the Court. By way of an October 2020 Order, the Court vacated the Board's decision, with remand for adjudication consistent with a Joint Motion for Partial Remand (Joint Motion). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In a July 2010 rating decision, TDIU was granted, effective April 23, 2008. Notably, in assigning an effective date of April 23, 2008, the RO stated that that was the date upon which the Veteran's claim for a TDU was received. Regarding the assignment of effectives dates, the governing law provides, generally, that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. That is, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Further, with regard to "claims" for a TDIU, the Court has held that "a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, when entitlement to TDIU is raised during the pendency of a claim for a higher rating for a service-connected disability, whether an appeal as to the initial rating assigned or an increased a rating claim, the matter of entitlement to TDIU is considered to be part and parcel of claim for a higher rating. As explained by the Board in the previous actions in this appeal, because a TDIU was raised in the context of the Veteran's claim for a higher rating for coronary artery disease, which claim was construed from the Veteran's July 21, 2004, request for a TDIU, and was not granted for the entirety of that period, entitlement to a TDIU prior to April 23, 2008, remained on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that where the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period for which TDIU was not granted or considered remains in appellate status.) As such, the Board must determine whether a TDIU is warranted at any point from July 21, 2004, until it was granted, effective April 23, 2008. At the outset, the Board notes that, as described below, the schedular criteria under 38 C.F.R. § 4.16(a) for the entire appeal period have been met. The Veteran has been in receipt of a combined disability rating of at least 70 percent, with at least one disability rated at 40 percent or more, since at least July 21, 2004. Specifically, beginning July 21, 2004, the Veteran had a combined evaluation of 70 percent for: coronary artery disease (evaluated as 60 percent disabling); diabetes mellitus, type II (evaluated as 20 percent disabling); right knee patellofemoral syndrome (evaluated as 10 percent disabling); and left ear hearing loss (evaluated as noncompensably disabling). During the relevant time period, the Veteran was also service-connected for peripheral vascular disease (PVD) of the left lower extremity, evaluated as 40 percent disabling from October11, 2005, to April 24, 2009. Notably, in awarding a TDIU, the RO, in the July 2010 rating decision, determined that that the combined severity of the Veteran's service-connected disabilities "would likely cause an inability to secure or follow a substantially gainful occupation." The RO also noted that a VA examiner had reported that the Veteran was "unemployable due to [his] diabetes, coronary artery disease and severe peripheral vascular disease." The RO concluded, therefore, that entitlement to a TDIU was warranted. In light of the RO's determination, the Board finds that when reasonable doubt is resolved in favor of the Veteran, a TDIU is warranted from July 21, 2004. Here, the evidence shows that the Veteran has not worked since before July 2004. The RO has also already determined that the Veteran's service-connected disabilities are of such severity as to preclude substantially gainful employment. Although the Veteran was not service-connected for PVD of the left lower extremity until October 2005, the Board finds no reason to believe that but for the Veteran's PVD, he would have been able to engage in substantially gainful employment during the period from July 2004 to October 2005. Again, the Board points out that the RO did not limit its finding of unemployability to the Veteran's service-connected disabilities that included PVD. Rather, it would appear that the RO merely cited to the VA examiner's opinion as further support for its conclusion that the combination of the Veteran's service connected disabilities rendered him unemployable. The Board also points out that the Veteran's service-connected CAD and diabetes did not increase in severity at any point during the appeal period. The Board acknowledges that the record contains evidence against the claim. However, in consideration of the above, and with resolution of doubt in favor of the Veteran on certain aspects of the claim, the Board finds that an effective date of July 21, 2004 (the date of receipt of the construed claim for service connection), is warranted for the Veteran's TDIU award. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.