Citation Nr: 18123973
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 18-28 284
DATE:	August 3, 2018
ORDER
Entitlement to an effective date earlier than July 18, 2017, for the award of a total disability rating based on individual unemployability (TDIU), is denied.
FINDING OF FACT
The Veteran did not demonstrate an inability to secure or follow a substantially gainful occupation as a result of any service-connected disability, prior to July 18, 2017.
CONCLUSION OF LAW
The criteria for an effective date earlier than July 18, 2017, for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1966 to June 1968.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2017 and February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 
In his May 2018 substantive appeal, the Veteran indicated that he did not want a hearing before the Board.  The Veteran has made no subsequent requests for a hearing.  As such, the Board finds the Veteran waived his right to a hearing.  
1. Entitlement to an earlier effective date for the award of a TDIU. 
Relevant Law
The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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.  In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).
A TDIU claim qualifies as a claim for increased disability compensation.  The Court determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date.  Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). 
The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o).  If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim.  In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase.  See generally Harper v. Brown, 10 Vet. App. 125 (1997). 
Significantly, in Norris, supra, the Court held that when an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of 38 C.F.R. § 4.16(a), and there is evidence of current service-connected unemployability in the record, evaluation of that rating increase must also include evaluation of a reasonably raised claim for a TDIU.  The Federal Circuit has also held that once a Veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based on individual unemployability.  Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  Similarly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  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 which is part of a pending claim for increased compensation benefits.
“Claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155 (a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word “specifically,” and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court’s precedents and public policies underlying the statutory scheme).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 
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.”  See 38 C.F.R. §§ 3.340 (a)(1), 4.15.
TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. §§ 3.340, 3.341, 4.16(a). 
If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease.  See 38 C.F.R. § 4.16 (a).  The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.
Analysis
As an initial matter, the Board notes the Veteran’s procedural history in his claim for entitlement to a TDIU.  The Veteran’s claim for entitlement to TDIU was initially denied in a February 2017 rating decision, following the submission of an October 2016 claim for a TDIU.  The Veteran submitted another application in July 2017 and was granted a TDIU in a December 2017 rating decision, effective July 18, 2017, the date of the receipt of the claim.  
The Veteran contests that his TDIU entitlement date should be effective as of August 18, 2016, the date his rating for posttraumatic stress disorder (PTSD) was increased to 50 percent disabling.  While the Board notes that the Veteran’s earliest formal application for TDIU was October 2016, the Board also acknowledges that the Veteran met the schedular threshold warranting consideration of TDIU when his claim for entitlement to an increased rating for PTSD was granted, effective August 18, 2018, and he had at a combined evaluation of 70 percent, with PTSD rated at 50 percent disabling.  See 38 C.F.R. § 4.16(a).  Again, Rice holds a TDIU claim to be part and parcel of the increased rating claim.  As the Veteran was not working at the time of his claim for an increased rating for PTSD, this increased rating claim for PTSD implicitly raised the matter of entitlement to a TDIU.  See Rice, supra.  In contravention to the Veteran’s argument, however, the Board finds that the evidence does not support an earlier effective date for TDIU prior to July 18, 2017.  
The Board observes that although the Veteran met the schedular criteria for a TDIU, prior to July 18, 2017, he did not meet all the requirements for a TDIU, namely an inability to maintain or obtain substantially gainful employment as a result of his service connected disabilities.  
Indeed, during the Veteran’s August 2016 VA examination, the examiner determined that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform.  With respect to relevant occupational and educational history, the Veteran reported that he had not returned to school and had not sought employment since his last examination.  He reported that his ability to complete activities of daily living independently was intact.  In explaining his daily routine, the Veteran described waking in the morning; completing personal hygiene tasks; eating breakfast; riding his truck; mowing and trimming his yard; taking out the garbage and recycling cans; visiting his brothers; and watching approximately three hours of television.  
The Veteran has also been service-connected for diabetes with erectile dysfunction and diabetic peripheral neuropathy of the right and left lower extremities.  The Veteran was afforded additional VA examination in December 2016 for diabetes and for reproductive systems.  See December 2016 VA examination report for diabetes ; see also December 2016 VA examination report for reproductive system.  Importantly, the examiners determined that the Veteran’s diabetes mellitus condition and reproductive system condition did not impact the Veteran’s ability to work.   
More recently, but prior to the July 2017 effective date, VA examination reports further support that the Veteran’s other service-connected disabilities of diabetes and peripheral neuropathy of the bilateral lower extremities did not inhibit the Veteran’s ability to sustain a substantially gainful occupation.  The February 2017 VA examination reports indicate that the Veteran’s ability to work was not impacted by service-connected diabetes mellitus or diabetic peripheral neuropathy.  See February 2017 VA examination report for diabetes mellitus; see also February 2017 VA examination report for diabetic peripheral neuropathy.  
With respect to the Veteran’s service-connected PTSD, the VA examiner noted the Veteran’s subjective reports that he retired in 2001 when the roofing company that employed him shut down.  See February 2017 VA examination report for PTSD.  He identified physical limitations as his main reason for not working.  The Veteran reported his occupation status as “retired” and reported that he had no desire to seek employment at his age of 75.  The Veteran denied seeking any employment since his 2016 VA examination and explained that “young guys can make you look like a fool up there,” when discussing the roofing industry.  The VA examiner specifically found that there was no evidence of any thought disorder, psychotic symptoms, memory impairment, impulse control problems, neglect of appearance, communication difficulties, danger to himself or danger to others that would impact his occupational functioning.  Importantly, the February 2017 examiner determined that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform.  
VA examination evidence considered all of his service-connected impairments separately and found that none produced an inability to maintain or obtain substantially gainful employment prior to July 18, 2017.  As such, the Board did not find it necessary to ask for a new VA examination opinion to consider all impairments in conjunction, where individually, no impairment other than PTSD impacted ability to work.  See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (VA’s duty to assist in a claim for TDIU “does not require obtaining a single medical opinion regarding the combined impact of all [of a veteran’s] service connected disabilities.”).  
In considering the aforementioned evidence, the Board notes that the Veteran reported quite extensive activities of daily living including performing household chores and yardwork, sustaining relationships with others, and engaging in independent living.  Additionally, the Board notes the Veteran’s explanation of his cessation of work to be attributed to the closing of his employer’s company.  His desire to avoid returning to work was attributed to an inability to compete with “young guys.”  In coupling the Veteran’s subjective reports of activities of daily living and allegations of inability to work with the VA examination reports pre-dating his grant for entitlement to TDIU that specifically make findings that his service-connected disabilities do not impede his ability to work, the Board finds the Veteran’s claim for an earlier effective date is unsupported by the evidence of record.
In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  The Board finds, however, the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date for a TDIU, prior to July 18, 2017.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

 
BISWAJIT CHATTERJEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Morrad, Associate Counsel 

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