Citation Nr: 21031663 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 08-10 966 DATE: May 24, 2021 ORDER Entitlement to an effective date prior to December 23, 1991, for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Entitlement to a TDIU has been awarded effective December 23, 1991. 2. A claim for entitlement to a TDIU was initially received in March 1999. CONCLUSION OF LAW The criteria for an effective date earlier than December 23, 1991, for the grant of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1952 to January 1954. This matter came to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office. In a November 2017 decision, the Board denied entitlement to an earlier effective date for the grant of a TDIU. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2018 Joint Motion for Remand (JMR) and Court Order, the Board's decision was vacated and remanded for action consistent with the JMR. In April 2019, May 2020, and November 2020, the issue was remanded to ensure compliance with the JMR and the prior Remand directives, to include obtaining outstanding private and VA treatment records and requesting that documents in Spanish be translated to English. The Board has determined that there has been substantial compliance and will proceed with a decision on the merits. The Veteran has been awarded entitlement to a TDIU, effective December 23, 1991. He asserts that an effective date of November 9, 1972 is warranted. 07/23/2007 VA 21-4138 Statement in Support of Claim. Generally, VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for 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. 38 C.F.R. § 4.16. In making this determination, the following will be considered one disability: 1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16(b). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. When assigning the effective date for an award of compensation, the date is typically based on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, in claims for increased disability compensation, including a claim for a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In turning to the Veteran's claim, the Board notes that he is currently service-connected for the following disabilities: (1) anxiety disorder (rated as 70 percent disabling from December 23, 1991); (2) chronic urethral strictire (rated as 20 percent disabling from December 23, 1991); and (3) schistosomiasis mansoni (rated as 10 percent disabling from June 29, 1956). The combined evaluation for these disabilities is 80 percent, effective December 23, 1991. See 38 C.F.R. § 4.25 (Combined Ratings Table). This corresponds to the effective date of the Veteran's TDIU award, upon the RO's finding that the Veteran was also unemployable at that time. However, the Veteran's claim may be granted if it is found that his service-connected disabilities precluded substantial and gainful employment prior to December 23, 1991, and that he filed a claim of entitlement to a TDIU within one year of that date. The Veteran asserts that an effective date of November 9, 1972 is warranted, as this is the earliest date on which he was precluded from obtaining and maintaining gainful employment due to his service-connected disabilities. The Board acknowledges that there is certain evidence of record that generally supports this timeline. 05/18/1998 SSA-831 Disability Determination and Transmittal (awarding disability benefits for a diagnosis of schizophrenia); 05/08/2000 Medical Treatment Record-Non-Government Facility (referring to the effective date as erroneous because the Veteran's psychiatric disability was first diagnosed in October 1972). However, the question at issue is not simply when the Veteran's entitlement arose, but also whether he filed a TDIU claim within one year of that date. The Board finds that the procedural history is dispositive in this regard. Specifically, the record indicates that the Veteran first filed for a TDIU on March 12, 1999, more than two decades after the alleged date of entitlement arose. Although the record contains evidence submitted within one year of the alleged date of entitlement, none can be construed as a formal or informal claim for entitlement to a TDIU. Briefly, the Board acknowledges an August 1972 claim submitted by the Veteran, in which he requests a 100 percent disability rating for his schistosomiasis mansoni, as the Veteran was "unable to work due to [his] service-connected condition." The Board finds that the RO properly construed this statement as a claim for an increased disability rating rather than entitlement to a TDIU, and notes that the Veteran did not disagree with this interpretation of the claim at any time. Moreover, the record does not show that his schistosomiasis mansoni, considered alone, resulted in his unemployability; as noted above, his psychiatric disability was identified as a basis for unemployability. Indeed, the Veteran now contends that his unemployability is due to his psychiatric disability. Importantly, he was not service-connected such disability at the time of the August 1972 claim. As such, an earlier effective date is not possible on this basis. Thus, the effective date in this case will be based upon the date that the claim was received or the date entitlement arose, whichever is later. If the Board were to accept the Veteran's contention that his unemployability dates to November 1972, then the proper effective date will be the date of the Veteran's claim in March 1999, as this is the later of the two dates. In this regard, the Board thus notes that the Veteran is already in receipt of an earlier effective date than that which is afforded per VA regulations. (Continued on the next page) In light of the above, the Board finds no basis upon which to grant the Veteran's claim. Accordingly, an earlier effective date than December 23, 1991, for TDIU is not warranted at this time. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.