06-33 587
06-33 587
Board of Vet. App.Sep 30, 2016Background
- Veteran served Mar 1963–Mar 1970; service-connected diabetes (20%) and diabetic retinopathy/cataract (30% after 2012), plus noncompensable hearing loss.
- Original increased-rating/secondary-conditions claim filed Sept 2005; TDIU not asserted until a VA Form 21-8940 submitted Nov 2012.
- Veteran stopped full-time employment in mid‑2009 (alleges June 2009) but continued part-time real estate work and reported 2009 earnings > $20,000.
- Board granted TDIU effective Sept 3, 2009 in March 2016 and referred the question of an earlier extraschedular effective date to VA Compensation Director.
- Director denied an earlier effective date in June 2016, finding continuing part-time work, lack of medical evidence showing unemployability before Sept 3, 2009, and no pending informal/formal TDIU claim prior to Nov 2012.
- Board reviewed record and denied entitlement to an effective date earlier than Sept 3, 2009 for extraschedular TDIU, finding unemployability was not factually ascertainable earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to an effective date earlier than Sept 3, 2009 for award of TDIU on an extraschedular basis | Veteran: became unemployable in June 2009 due to service‑connected diabetes/retinopathy and should receive earlier effective date | VA/Director: no informal or formal TDIU claim pending before Nov 2012; record shows part‑time work/earnings and no medical evidence of unemployability prior to Sept 3, 2009 | Denied — Sept 3, 2009 is earliest factually ascertainable date of unemployability; earlier effective date not warranted |
Key Cases Cited
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (informal claim can indicate entitlement to TDIU when claimant seeks highest rating and submits evidence of unemployability)
- Hurd v. West, 13 Vet. App. 449 (CAVC 2000) (TDIU treated as a claim for increased compensation for effective‑date purposes)
- Bowling v. Principi, 15 Vet. App. 1 (CAVC 2001) (Board lacks authority to assign extraschedular TDIU in first instance)
- Brannon v. West, 12 Vet. App. 32 (CAVC 1998) (definition and sufficiency of informal claims)
- Rice v. Shinseki, 22 Vet. App. 447 (CAVC 2009) (standards for determining whether record raises issue of unemployability)
- Quarles v. Derwinski, 3 Vet. App. 129 (CAVC 1992) (all communications must be reviewed to identify when a claim was received)