Citation Nr: 1805749 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-13 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than March 23, 2010, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service from August 1969 to December 1969, July 1982 to December 1982, and January 1991 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal, from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted TDIU effective March 23, 2010. FINDINGS OF FACT 1. Prior to March 23, 2010, there was no informal claim for TDIU. 2. VA did not receive the Veteran's claim for compensation benefits for TDIU prior to March 23, 2010. CONCLUSION OF LAW The criteria for an effective date prior to March 23, 2010, for the grant of entitlement to a TDIU have not been met. 38 U.S.C.§§ 1555, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103 (a), 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist as to this claim, and the appeal may be considered on the merits. Effective date for TDIU The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110(b)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals pending or that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the Veteran's claim was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Under the law prior to the amendment, a claim was defined as 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). A threshold requirement for eligibility for TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). However, even where the Veteran does not meet these schedular requirements, 38 C.F.R. § 4.16(b) codifies VA's policy under which all veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities "shall be rated totally disabled." Significantly, however, the Board has no power to award a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for such consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the Veteran's formal claim for TDIU, VA Form 21-8940 , was received on March 23, 2010. The claim was granted in a July 2010 rating decision, effective from March 23, 2010. Parenthetically, the Board notes that in June 2010, the Board issued a decision finding that a November 2007 substantive appeal of the evaluation of service-connected cervical and thoracic spine and right shoulder disabilities was timely. The Veteran argues the effective date for TDIU should be August 28, 2005, the date following his date of separation from service. Relevant to this argument, the Veteran's combined service-connected disability rating was 80 percent effective from August 28, 2005, as set forth in a January 2007 rating decision. In an earlier rating decision in December 2005, the RO had awarded an initial combined service-connected disability rating of 60 percent effective from August 28, 2005. That the Veteran has been unemployed since separation from service in August 2005, is not in dispute. He argues, generally, that he was prevented from filing a VA Form 21-8940 prior to March 23, 2010, because his claim as to the timeliness of the appeal for increased ratings was tied up at BVA. See August 2010 VA form 21-4138. As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157. Under the provisions of 38 C.F.R. § 3.157(b)(1) , the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2-3). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). March 23, 2010, is the undisputed date of formal claim for TDIU that is on appeal. However, it is noted that a claim for TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran first submitted a claim for service connection for multiple disabilities in July 2004, prior to service separation. As noted, service connection for multiple disabilities, with a combined rating of 60 percent, was granted in a December 2005 rating decision, effective from August 28, 2005, the date after service separation. The January 2007 rating decision increased the combined rating to 80 percent, effective from August 28, 2005. While the Veteran submitted a November 2006 statement disagreeing with the December 2005 rating decision, this document does not indicate that he cannot work due to service-connected disabilities. Neither do his subsequent VA Form 9s or any of his statements dated from August 28, 2005, to March 23, 2010. Certainly medical records reflect that his service-connected disabilities have an occupational impact. The Board notes in particular a May 2006 VA examination report indicating that while his service-connected disabilities are not affecting his daily activities, his service-connected cervical disability, for which he had undergone 2 recent surgeries, "grossly affects his ability to obtain and sustain employment." Nonetheless, no treatment records indicate that he was unemployable and seeking TDIU as result of his service-connected disabilities prior to March 23, 2010, and he did not submit any such evidence at the same time as submitting a claim for the highest rating possible. Also, his TDIU claim was not filed within one year from the date of such examination. This is not in dispute; the Veteran himself argued in August 2010 that he did not file a TDIU application earlier than March 2010. See Dean v. Shulkin, No. 16-3234 (Vet. App. Dec. 27, 2017) (unpublished single-judge disposition) Court affirmed Board decision that there was no pending formal or informal claim for TDIU prior to the formal application, and none could be inferred, when documents cited to by appellant did not suggest that the appellant was unemployed or that his service-connected disabilities resulted in unemployability and, therefore, concluded that neither document constituted an informal claim for TDIU. In pertinent part, the Court observed that appellant failed to either identify any formal or informal written communication received by VA prior to April 2006 indicating an intent to apply for TDIU that was overlooked by the Board, or demonstrate error in the Board's factual determination that the appellant's 1973 NOD and Form 9 did not raise entitlement to TDIU because neither communication provided evidence that the appellant was unemployed or unemployable as a result of his service-connected disabilities. The Court noted Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), holding "[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and VA must consider TDIU"). The Court added emphasis with regard to the term evidence of unemployability. See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Board finds thus that there was no informal claim for TDIU pending prior to the March 23, 2010 claim; none of the Veteran's communications between August 2005 and March 23, 2010, indicates he was unemployable because of his service-connected disabilities and there is no identified informal claim. 38 U.S.C. § 5110(b) applies when there has been a change within the year prior to the date of claim. Here, there is no proof of a change in disability level within the one year prior to the March 23, 2010, date of the TDIU formal claim before the Board, and there is certainly no date upon which to establish an earlier effective date for the award of TDIU. It is undisputed that the combined 80 percent rating was effective since August 2005. As there is no date during the one year period prior to the claim upon which it is factually ascertainable that the Veteran's disability worsened, the controlling date in this case is the date of the Veteran's claim. As such, the currently assigned effective date of March 23, 2010, the date of claim, is proper. For the foregoing reasons, an effective date earlier than March 23, 2010, for TDIU is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. 38 U.S.C. § 5107. ORDER An effective date earlier than March 23, 2010, for the grant of TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs