Citation Nr: 21030761 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-32 583A DATE: May 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 29, 2018 is denied. FINDINGS OF FACT 1. The Veteran worked full time at the United Postal Service from September 2017 to November 2018. 2. It was not factually ascertainable that the Veteran was unable to secure and follow a substantially gainful occupation solely due to his service-connected disabilities alone prior to September 2017. CONCLUSION OF LAW The criteria for an effective date prior to November 29, 2018, for the award of a TDIU are not met. 38 U.S.C. §§ 5110, 5107, 5109A, 7105; 38 C.F.R. §§ 3.105, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in active service in the United States Marine Corps from December 1999 to May 2002, and in the United States Army from October 2008 to May 2010, from March 2014 to August 2014, and from June 2015 to January 2016. He had additional service in the United States Army National Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of the VA Regional Office (RO). At that time, the claim for a TDIU was denied. The Veteran filed a NOD in September 2016. As no SOC had been issued, the Veteran contacted VA in November 2019. In the memorandum documenting that communication, the RO recognized the September 2016 NOD had not been responded to. The RO then issued a November 2019 SOC related to the TDIU claim, as well as related to increased rating claims for posttraumatic stress disorder (PTSD) and for a left shoulder disability. In November 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, listing TDIU as the issue. The Veteran did not check the box for opting in from the SOC. The Veteran also did not file a VA Form 9 in response to the November 2019 SOC. However, the RO, in May 2020, placed a Deferred Rating in the claims file, which shows that they accepted the VA Form 20-0995 as a substantive appeal in lieu of a VA Form 9. Therefore, the Board must consider this TDIU claim pending since April 2016, the month he filed his TDIU claim. As the Veteran did not list the PTSD and left shoulder issues on the VA Form 20-0995, the RO considered those claims withdrawn. The RO notified the Veteran of these findings with regard to the PTSD and left shoulder appeals by way of a letter in May 2020. In May 2020, the RO issued a rating decision granting the Veteran a TDIU effective November 29, 2018. This effective date was assigned as this was the day after the Veteran's last day working for the United States Postal Service. The question remains before the Board whether a TDIU was warranted between April 2016 and November 2018. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned, where the schedular 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran met the schedular requirement for a TDIU throughout the relevant time period. His combined rating has been 90 percent since August 27, 2014, until April 29, 2019 when his rating went up to 100 percent. His service connected posttraumatic stress disorder (PTSD) was rated 70 percent disabling from August 27, 2014 to April 29, 2019. Thus, the Veteran meets the rating criteria for a TDIU between April 2016 and November 2018. A November 2018 letter from the United States Postal Service (USPS) shows the Veteran went on an off-duty status without pay on November 28, 2018, and was later terminated. At his January 2021 Board hearing, the Veteran confirmed he worked at USPS full time from September 2017 to November 2018. As the Veteran was working full time for USPS between September 2017 and November 2018, a TDIU is not warranted for that time period. The question left for the Board is whether there is evidence of unemployability from April 2016 to September 2017. On his September 2016 NOD form, the Veteran reported that he tried to work and wants to work, but that it is too hard for him. There is no other evidence in the record during the relevant time period addressing the Veteran's employability. The record shows the Veteran was given an opportunity to schedule an examination in August 2016 to assess his employability, but he did not respond. There is no other evidence suggesting unemployability in any of the other records during the relevant time period. Based upon the foregoing, the Board finds that it was not factually ascertainable that the Veteran was unemployable due to his service-connected disabilities between April 2016 and November 2018. The clinical records do not show the Veteran being deemed to be unemployable during this timeframe due to his service-connected disabilities. The only evidence related to the claim is the Veteran's own report that he wanted to work, but was having a hard time. This does not rise to the level of unemployability. Thus, because the Veteran worked full time from September 2017 to November 2018, and the evidence does not show he was unemployable prior to September 2017, November 29, 2018, the day after the Veteran stopped working, is the appropriate effective date for his TDIU. There is no basis in the record for an assignment of an earlier date. The benefits sought on appeal are, therefore, denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.