Citation Nr: 22017500
Decision Date: 03/25/22	Archive Date: 03/25/22

DOCKET NO. 11-06 148
DATE: March 25, 2022

ORDER

Entitlement to an effective date prior to November 3, 2017, for a total disability rating based on individual unemployability (TDIU) is denied.

FINDING OF FACT

The most persuasive evidence is against a finding that the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment prior to November 3, 2017.

CONCLUSION OF LAW

The criteria for an effective date prior to November 3, 2017, for TDIU have not been met.  38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

This matter was previously before the Board of Veterans' Appeals (Board) in March 2021, when it was remanded for further development.  At that time, the issue on appeal was characterized as "entitlement to TDIU."  After the Board's March 2021 remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU, effective November 3, 2017.  The AOJ has now returned this matter to the Board for further appellate consideration as the increased rating claim that gave rise to the implied TDIU claim predates the current effective date of TDIU.  See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran appeared at a hearing before the undersigned in July 2013.  A transcript of the hearing is of record.

Analysis

The effective date of an award of increased compensation is typically based on the date of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  An effective date of an award of increased compensation can be assigned up to one year prior to the date of claim under the provisions of 38 C.F.R. § 3.400(o)(2) if it is factually ascertainable that a definitive increase in severity in disability occurred during that period.

TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The relevant issue is not whether the claimant is unemployed or has difficulty obtaining employment, but whether the claimant can perform the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU.  See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment).  In determining whether unemployability exists, consideration may be given to the claimant's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 4.16, 4.19.

Here, the Board finds the most persuasive evidence is against a finding that the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment prior to November 3, 2017.  Although the Veteran met the schedular percentage requirements for TDIU and filed the increased rating claim that gave rise to the present appeal several years prior to his current TDIU effective date, the most persuasive evidence indicates he could perform the physical and mental acts required by employment until November 2017.  This evidence includes a January 2022 VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability) completed by the Veteran, as well as Social Security Administration (SSA) records, that show the Veteran continuously worked full time throughout the appeal period until early November 2017.  The Veteran's January 2022 VA Form 21-8940 indicates he last worked full time on November 14, 2017, whereas his SSA records reflect a date of November 3, 2017.  The AOJ resolved reasonable doubt in the Veteran's favor in this regard and assigned an effective date of November 3, 2017, based on SSA records.  There is no indication from the record that the Veteran's employment prior to November 3, 2017, constituted marginal employment as his work income exceeded the poverty threshold and does not appear to have been under circumstances constituting a protected work environment as he worked in sales for a major steel company prior to the cessation of his work-related activities in November 2017.  As the most persuasive evidence, the Veteran's self-report of his employment history and corroborating SSA records, weigh heavily against a finding that an effective date of TDIU prior to November 3, 2017, is warranted, the Veteran's appeal must be denied.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.