Citation Nr: 18152102 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 18-09 391 DATE: November 20, 2018 ORDER Entitlement to an effective date prior to March 31, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The July 2009 rating decision denying a January 2009 claim for entitlement to TDIU was final. 2. The February 2012 rating decision denying a January 2011 claim for entitlement to TDIU was not final, as the Veteran submitted an October 2013 document that constitutes a substantive appeal. 3. The Veteran met the requirements for TDIU at the time of his January 2011 TDIU claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of January 19, 2011 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an effective date prior to March 31, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R.§ 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R.§ 4.16, 4.19. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). Prior to March 24, 2015, VA defined a "claim" 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) (2014); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating the informal claims). An informal claim was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155 (a). Thus, the essential elements for a claim, whether formal or informal, were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing" for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran’s claim for TDIU was granted in a November 2016 rating decision. An effective date of March 31, 2016 was assigned for the Veteran’s TDIU, the date the VA received a recent TDIU application submitted by the Veteran. In this case, the record clearly establishes the Veteran originally filed a TDIU application that was received in January 2009. The claim was denied by a July 2009 rating decision. The Veteran did not file a timely notice of disagreement and VA did not receive new and material evidence regarding a TDIU claim within one year of notice of the decision; therefore, the July 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.302; 20.1103 (2017). The Veteran then filed a new claim for TDIU that was received in January 2011. The claim was denied by a February 2012 rating decision. The Veteran filed an August 2012 notice of disagreement, and a Statement of the Case (SOC) was issued in October 2013. In October 2013, the Veteran’s representative submitted new and material evidence with respect to the Veteran’s claim along with a request for reconsideration of the claim for TDIU. A Supplemental Statement of the Case (SSOC) was issued in June 2015. The October 2013 correspondence from the Veteran’s representative indicated disagreement with the February 2012 decision, contained new and material evidence, and was submitted within 60 days from the date of issuance of the October 2013 SOC, well within the appeal period. Additionally, the Board notes that after receipt of the October 2013 correspondence from the Veteran’s representative, the AOJ subsequently issued an SSOC in June 2015, which would reasonably lead the Veteran to believe the claim was still on appeal. The Veteran expressed as much in an August 2015 statement submitted to VA after the June 2015 SSOC, in which the Veteran indicated that he wished to proceed with the appeal he filed in October 2013. In light of the above, the Board construes the October 2013 correspondence as a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding the filing of a substantive appeal is not jurisdictional and may be waived by VA). Thus, the February 2012 rating decision is not final and the date of claim in the context of this appeal is January 19, 2011, the date VA received the Veteran’s January 2011 claim for TDIU. Accordingly, the Board will consider whether an earlier effective date for TDIU is applicable between January 19, 2011 and March 31, 2016. The Veteran met the schedular requirements for TDIU at the time of his January 19, 2011 claim. The Veteran is currently service connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, status post total right knee replacement, status post total left knee replacement, cervical spine strain with degenerative disc disease, tinnitus, degenerative joint disease of the left foot and right shoulder, postoperative hemorrhoidectomy, shrapnel fragment wounds with minor scars, and residual surgical scarring. For the entire period on appeal, the Veteran’s combined evaluation for compensation has been at least 80%, with his service-connected posttraumatic stress disorder rated at 50 percent disabling for the entire period. See 38 C.F.R. § 4.16(a). In his January 2011 claim, the Veteran indicated that he quit his job as a substitute teacher because he could not handle the stress of the classroom, noting that his depression was worse and that he was suffering from severe anger issues, had a very short fuse, worsening memory loss, and further noting that his anger and depression were beginning to take a toll on his marriage. In his most recently submitted May 2016 TDIU application, the Veteran reported having last worked in December 2010 as a substitute teacher, and further reported that he completed two years of college, and had no other education or training before he became too disabled to work. The Veteran underwent a June 2011 VA contract psychiatric examination, in which the examiner diagnosed the Veteran with PTSD, alcohol abuse in remission, and a panic disorder. With respect to the Veteran’s PTSD, the examiner noted that the Veteran had symptoms including re-experiencing the event with recurrent recollections, nightmares and physiological reactivity, increased arousal including difficulty sleeping, irritability, an exaggerated startle response, and hypervigilance; the examiner noted those symptoms had been worsening to the point where he had to retire from his job due to emotional issues in December 2010. The examiner also noted that the Veteran was experiencing depressed mood, panic attacks at least once a week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, noting that the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran also underwent a September 2011 VA contract examination assessing his service-connected bilateral knee disorders, right shoulder disorder, cervical spine disorder, toe disorder, shrapnel fragment wounds, and post-operative hemorrhoidectomy. Ultimately, the September 2011 contract examiner concluded that the Veteran’s service-connected disabilities assessed in the exam rendered him unable to walk or stand for prolonged periods, but would not prevent him from performing sedentary employment activities. (Continued on next page) Taking into consideration the evidence of record, particularly the Veteran’s educational and occupational background and the contract examinations referenced above, and after resolving any reasonable doubt in favor of the Veteran, the Board concludes that the aggregate effect of the Veteran’s service-connected disabilities would have precluded obtaining or maintaining substantially gainful employment in any active or sedentary position he might have been able to obtain with his background for the period on appeal. Thus, an effective date of January 19, 2011 for TDIU is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Reed, Associate Counsel