Citation Nr: 1633029 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 09-27 884A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than March 26, 2008 for entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran's claim was previously before the Board in January 2013, when the Board remanded the issue of TDIU for adjudication. TDIU was subsequently granted and the Veteran appealed the effective date that was assigned. It is noted that the Veteran was granted TDIU in a 2015 rating decision. In March 2016, the RO issued a supplemental statement of the case (SSOC) suggesting that TDIU was denied. However, as TDIU was already awarded and there was no suggestion that a reduction was being undertaken or that clear and unmistakable error (CUE) had been made, the SSOC is taken to have been issued in error. The Board is claiming jurisdiction over the effective date question for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDING OF FACT A claim, formal or informal, seeking service connection for any disability was not filed by the Veteran or on his behalf until March 26, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than March 26, 2008 for the grant of TDIU have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103 , 5103A; 38 C.F.R. § 3.159 . Because the June 2015 rating decision granted TDIU and assigned effective dates for the awards, statutory notice had served its purpose, and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Furthermore, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has also been identified and obtained, to the extent possible. Determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that pertinent evidence constructively of record is outstanding. The Veteran and his representative have not identified any outstanding relevant evidence. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). At issue is whether the Veteran is entitled to an earlier effective date for TDIU. The Veteran is not entitled to an earlier effective date, because he has already been granted TDIU effective the earliest date VA received any disability claim from the Veteran. The Veteran first filed for service connection for posttraumatic stress disorder (PTSD) in April 2008, and, in September 2008, the RO granted service connection and assigned a disability rating of 50 percent effective the date the Veteran's formal claim was received. The Veteran appealed. Subsequently, the RO assigned an effective date of March 26, 2008; the date the Veteran's informal claim was received. In January 2013, the Board increased the Veteran's disability rating to 70 percent. The Board also found that the issue of TDIU was raised by the record, and remanded the issue of TDIU for additional consideration. In June 2015, the RO granted TDIU from the date the Veteran's informal claim was received, and the Veteran was assigned a total disability rating from March 2008. A May 2016 report of general information indicates that the Veteran's representative requested that the Board review the Veteran's claim for consideration of the earlier effective date. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 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. 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). This is a case involving an original claim for direct service connection filed more than one year after separation. Accordingly, the Veteran is entitled to an effective date that is the later of the date entitlement arose or the date the claim was received. As the Veteran first filed a claim in March 26, 2008, that is the earliest effective date that could possibly be assigned. There is simply no document or evidence received earlier than March 2008 that might be construed as an informal claim for TDIU. Accordingly, the Veteran has been assigned the earliest effective date possible. Consequently, entitlement to an earlier effective date for the grant of TDIU is denied. ORDER An effective date earlier than March 26, 2008 for the grant of TDIU is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs