Citation Nr: 18154161
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-42 485
DATE:	November 29, 2018
ORDER
Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), prior to November 23, 2011, is denied.
FINDING OF FACT
The Veteran’s service-connected disabilities have precluded substantial gainful employment since November 23, 2011, but not earlier.  
CONCLUSION OF LAW
The criteria for an effective date prior to November 23, 2011, for TDIU are not met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1976 until November 1980.  
This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines.  The Veteran testified before the undersigned Veterans Law Judge in April 2018.  A transcript of the hearing has been associated with the record.
Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), prior to November 23, 2011
The Veteran is seeking an effective date of August 2010 for TDIU, the date he reported that he became too disabled.  He stated that he was unable to submit an application until later because of the severity of his cervical disc disease.  
A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim.  Hurd v. West, 13 Vet. App. 449 (2000).
In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date.  Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later.  38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997). 
Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 
A July 2015 rating decision established entitlement to TDIU based on service-connected disabilities of temporomandibular joint disorder, posttraumatic stress disorder cervical spine degenerative disc disease, cervical radiculopathy, tinnitus, vertigo, and hearing loss.  The combined disability rating was 20 percent, effective January 19, 2011; 70 percent, effective November 23, 2011; 80 percent, effective June 8, 2012; and 90 percent, effective December 17, 2013.  Those disabilities were found to make the Veteran unable to obtain substantially gainful employment.
A June 2016 rating decision granted an earlier effective date of November 23, 2011, based on when the Veteran’s combined disability rating of 70 percent as of that date, with service connection established for temporomandibular joint disorder, rated 40 percent; a psychiatric disability, rated 30 percent; a cervical spine disability, rated 20 percent; tinnitus, rated 10 percent; vertigo, rated 10 percent; and hearing loss rated 0 percent.  The Board finds that an effective date prior to November 23, 2011, for the award of TDIU is not warranted.  
Total disability ratings are authorized for any service-connected disability or combination of service-connected disabilities, provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of the service-connected disabilities.  If there is only one service-connected disability, it must be rated at least 60 percent.  If there are two or more disabilities, at least one must be rated at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent.  38 C.F.R. §§ 4.15, 4.16(a).  Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether the threshold minimum rating requirements are met.
In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may be assigned on a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities.  38 C.F.R. § 4.16(b) (2015).
Prior to November 23, 2011, the Veteran was service-connected only for a cervical spine disability, rated 20 percent.  His combined disability rating was 20 percent.  Therefore, he did not meet the percentage criteria of 38 C.F.R. § 4.16(a) and the Board must consider whether referral for consideration of the assignment of a total rating pursuant to 38 C.F.R. § 4.16(b) prior to November 23, 2011, was warranted.
A June 2011 VA examination found that the Veteran had retired in 2005 due to age.  The examiner found that the cervical spine disability would cause increased tardiness at work, decreased concentration, decreased mobility, decreased strength of the upper extremities, and pain.  The examiner found that there would be a moderate to severe effect on daily activities due to the service-connected cervical spine disability.
The Board finds that the evidence does not show prior to November 23, 2011, that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disability.  He was service-connected only for a cervical spine disability, which was not shown to cause him to be unable to work.  The evidence of record shows that the disability would case moderate to severe impairment, but does not show that work was precluded.  The Veteran had retired from work due to age.
Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities prior to November 23, 2011.  Therefore, the claim must be denied.
 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Kass, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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