Citation Nr: 18147483 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-02 426 DATE: November 6, 2018 ORDER Entitlement to an effective date earlier than September 28, 2015, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran first raised the issue of a TDIU on September 28, 2015; prior to September 28, 2015, there are no written communications that may be construed as a formal or informal claim for a TDIU. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 28, 2015, for an award of TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION TDIU Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran contends that he should be entitled to an effective date of November 4, 2011, the date his service-connected disability ratings met the minimum statutory requirements for an award of a TDIU. See September 2015 statement. The Board recognizes that during the course of the Veteran's original claim, VA recognized both formal and informal claims, although those pertinent regulations have more recently been rescinded, requiring the filing of formal claims after March 24, 2015. Prior to March 2015, an informal or formal claim contains the following requirements: “(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); see also 38 C.F.R. §§ 3.155(b) (2017) (explaining how to file a claim), 3.1(p) (2015) (defining “claim” as a “formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit”). Meeting the rating criteria alone, is not enough for an award of a TDIU. As noted above, the effective date for such an award will be the later of the date the entitlement arose or the date of receipt of a claim. While the Veteran may have met the minimum rating criteria requirements effective November 4, 2011, no intent to file a claim for TDIU benefits was made until September 28, 2015. It is observed that while pursuing a service connection claim, in August 2012, the Veteran submitted a statement that indicated he had no income. However, this statement was in support of a request to expedite the Veteran's claim. While VA will liberally construe claims for entitlement it cannot read into a submission a claim that is not there. The Veteran still has the burden of showing an intent to apply for a benefit and identifying the benefit sought. At no time did the Veteran indicate that he wished to apply for a TDIU, before his September 2015 correspondence. Further, a claim for a TDIU will only be inferred as part and parcel of a claim for an increase in disability rating, not as part of a claim for service connection. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, prior to the Veteran's September 2015 statement, the last rating action that assigned a disability rating was issued in November 2013. That decision responded to the Veteran’s claim for service connection which include assigning disability ratings when service connection had been established. In order to appeal that decision, the Veteran would have had to file a Notice of Disagreement within one year. See 38 C.F.R. § 20.302. Thus, the September 2015 claim would be untimely as a Notice of Disagreement to the November 2013 decision, and can only be viewed as an intent to file a new claim for an award of a TDIU. As noted above, the effective date for a claim for compensation will be the later of the date the entitlement arose or the date of receipt of the claim. While the Veteran met the minimum rating criteria for an award of TDIU benefits effective from November 2011, the ratings that were then assigned were not appealed and became final, and no claim for a TDIU was subsequently received or raised by the record until September 28, 2015. As such, that is the earliest possible date for a grant of a TDIU. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel