Citation Nr: 18140528 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-36 925 DATE: October 3, 2018 ORDER Entitlement to an effective date prior to May 17, 2012 for the grant of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran submitted a claim for entitlement to a TDIU received on May 17, 2012. 2. The evidence first factually demonstrated TDIU in September 2012. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 17, 2012 for the grant of a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1963 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date prior to May 17, 2012 for the grant of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) The assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran’s claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Prior to March 24, 2015, a claim was 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 is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). In January 2012, the RO awarded service connection for sleep apnea and assigned an initial 50 percent rating, effective from June 2011. The Veteran filed a formal Application for Increased Compensation Based on Unemployability that was received in May 2012 based on his service connected hearing loss, tinnitus, sleep apnea, and posttraumatic stress disorder. A January 2013 rating decision granted TDIU, effective from the date of his formal claim, May 17, 2012. The Veteran argues that TDIU should be granted back to June 2011, the date he was awarded service connection for sleep apnea. First, the Board finds that the date of the claim is not predicated on the previous claim for entitlement to service connection for sleep apnea. Under Rice v. Shinseki, a claim for TDIU is considered to be part and parcel of an increased rating claim, and therefore when evidence is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU is raised and must be addressed. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in order for TDIU to be inferred as part and parcel of a pending claim, there must be a pending appeal from an assigned disability rating. Id. Here, the sleep apnea claim was a claim for service connection. There was no pending increased rating appeal. The first evidence that could be construed as the Veteran contesting the initial disability rating assigned for sleep apnea was upon receipt of his May 2012 claim for TDIU. Further, prior to May 2012, there is no document or statement that may be construed as an informal claim for a TDIU. As such, the Board finds that the date of the claim is May 17, 2012. The evidence also shows that the first medical evidence demonstrating entitlement to TDIU was received after the May 2012 claim. During a December 2010 PTSD examination, for example, the Veteran reported that he worked for 40 years until he retired by choice in 2004. The examiner found that the Veteran’s PTSD did not cause total occupational impairment but rather reduced reliability and productivity. There is no indication that the Veteran was unable to work related to his PTSD. Further, during a January 2012 VA sleep apnea examination, the Veteran’s sleep apnea was not found to impact his ability to work. Rather, he again reported retiring as eligible by his age. Then, after submitting his May 2012 claim for TDIU, during a September 2012 VA examination, the Veteran noted that sleep apnea impacts his ability to work due to daytime somnolence, tiring easily with physical effort, and falling asleep when sedentary. During a September 2012 VA PTSD examination, the examiner described the condition as causing “moderate occupational difficulty”. During a September 2012 audiological examination, the Veteran reported that his hearing loss and tinnitus impact his ability to work because they prevent him from hearing speakers at home or in noise. Based on the results of the September 2012 examinations, the Veteran was found unemployable. As noted above, the effective date of an award of compensation for a claim of entitlement to a TDIU is the later of the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(1). As the Veteran’s claim was filed in May 2012 and the evidence first showing that entitlement to TDIU was warranted is dated in September 2012, the current effective date was generously awarded prior to the date entitlement arose, pursuant to no extant regulation. Additionally, as the first medical evidence showing entitlement to TDIU was received after the date of claim, entitlement to an earlier effective date pursuant to 38 C.F.R. § 3.400(o)(2) is not for application. The Board has carefully considered the arguments provided by the Veteran’s representative in the January 2013 Notice of Disagreement and the September 2018 Informal Hearing Presentation. The Board finds that the representative’s arguments are without merit and that they were adequately addressed in the analysis above. There was no increased rating claim pending at the time the Veteran submitted his claim for entitlement to a TDIU. As such, the TDIU claim is not part and parcel of a previous appeal, and the general rules governing effective dates apply to the Veteran’s free-standing TDIU claim. Additionally, there is no medical evidence showing TDIU eligibility until after the May 2012 claim. The Veteran’s representative further argues that extraschedular consideration should be considered under both 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). However, there is no evidence that the Veteran contested the ratings assigned to his PTSD or sleep apnea claims on a schedular or extraschedular basis. In that regard, the ratings assigned to his PTSD and sleep apnea are separate issues from the claim adjudicated herein and would not serve as a basis for a TDIU unless employability was specifically raised. Additionally, the Veteran met the schedular requirements for TDIU at the time of his May 2012 claim. As such, there is no need for referral under 38 C.F.R. § 4.16(b). In conclusion, an effective date earlier than May 17, 2012, for the grant of a TDIU is not warranted. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor