Citation Nr: 18153016 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-43 231 DATE: November 27, 2018 REMANDED Entitlement to an effective date prior to July 20, 2015, for the grant of a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REASONS FOR REMAND The Veteran served on active duty from August 1984 to August 1991 and from January 2005 to January 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). 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 “[a]ny 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). Additionally, when TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. Effective January 4, 2008, the Veteran’s compensable service-connected disabilities were neurogenic balder disability, lumbar spine degenerative disc disease, cervical spine degenerative disc disease, gastroesophageal reflux disease, and left shoulder arthritis. Beginning on January 4, 2008, the Veteran satisfied the schedular percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2018). Thus, the date of entitlement depends on when the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In a January 2016 rating decision, the Veteran was granted TDIU, effective July 20, 2015. The RO assigned this date as it was the date of the formal claim the Veteran filed. However, as several claims for increased ratings were on appeal, an informal claim may have earlier been raised. Additionally, the evidence on appeal does not demonstrate when the Veteran was no longer employed, or what his education and employment history are. The Veteran asserts that the symptoms from his service-connected disabilities prevented him from gaining or maintaining employment from the time he was discharged from his second period of service on January 3, 2008. The question before the Board is both the date of claim and the date that the Veteran was precluded from substantially gainful employment as a result of his service-connected disabilities during the period from January 4, 2008 through July 19, 2015. As to that question, the Board observes that the record does not contain sufficient competent medical evidence to decide the claim and a VA examination is thus required. The matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative (if any). 2. After any additional records are associated with the claims file, forward the Veteran’s claims file to an appropriate VA examiner or VA examiners for an examination or examinations. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner(s) should elicit from the Veteran pertinent facts regarding his education and employment history. Second, the examiner(s) must provide a retrospective opinion regarding the functional effects of each of the Veteran’s service-connected disabilities that would impact his industrial capacity, from January 4, 2008 through July 19, 2015. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson