Citation Nr: 18154359 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-51 867 DATE: November 29, 2018 ORDER Entitlement to an effective date earlier than January 7, 2016, for the grant of total disability rating based on individual unemployability due to service-connected disabilities (TDIU). is denied. FINDING OF FACT 1. A May 2011 rating decision denied entitlement to TDIU, the Veteran did not file a timely notice of disagreement, no new and material evidence was received relevant to the issue within one year, and the denial became final. 2. The Board’s December 2011 decision denied the Veteran’s claim for entitlement to an increased rating for a bilateral hearing loss disability, Veteran did not appeal the decision, and it became final. 3. On January 7, 2016 the Veteran filed a new claim for TDIU, and there is no evidence of any claim for TDIU or increased rating for any service-connected disability subsequent to the prior denials and prior to the January 7, 2016 TDIU claim. 4. It is not factually ascertainable that the Veteran became unable to maintain gainful employment during the one-year period prior to January 7, 2016. CONCLUSION OF LAW The criteria for an effective date prior to January 7, 2016, for the award of a TDIU have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to November 1979 and from December 1979 to April 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date earlier than January 7, 2016, for the grant of total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A February 2016 rating decision allowed TDIU from January 7, 2016, the date the Veteran filed a claim asserting unemployability. He contends an earlier effective date is warranted because he stopped working in September 2010. The Veteran’s previous claim for TDIU was denied in a May 2011 rating decision. The Veteran did not appeal, new evidence related to unemployability was not received within one year, and the decision became final. The Veteran’s appeal for a compensable rating for bilateral hearing loss was pending at the time of the May 2011 rating decision. Additional medical evidence related to the Veteran’s hearing loss was developed within one year of the May 2011 rating decision. The Veteran did not assert he was unable to work due to a hearing loss disability and the evidence is not relevant to the TDIU claim. The claim for an increased rating for hearing loss was ultimately denied by a December 2011 Board decision. The Veteran did not appeal and the Board’s decision became final. 38 U.S.C.§ 7105; 38 C.F.R. §§ 3.156(b), 20.302; 20.1100; 20.1103. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The effective date for an award of increased disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date otherwise, the date of receipt of claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2). If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). From March 25, 2015 forward, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). Prior to March 25, 2015, 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.” 38C.F.R. § 3.1(p). An informal claim was “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). Thus, the essential elements for any 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.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment-defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person-shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. Given this legal framework, the Board must answer two questions: first, is there evidence of an increase in disability warranting a TDIU finding in the year preceding the Veteran’s January 7, 2016 claim; and second, is there any evidence that the Veteran filed a claim for a TDIU, after the May 2011 rating decision or the February 2012 Board decision and prior to January 7, 2011? As to the first question, the Veteran retired in September 2010 after working for 29 years as a letter carrier. In his January 2016 statement he claims would have continued working but was unable to do so because of pain related to his service-connected back disability. His April 2016 notice of disagreement (NOD) asks that TDIU be awarded from September 2010. His wife’s January 2016 statement asserts that the Veteran retired in September 2010 because he could no longer work because of back pain. The Veteran’s private physician, Dr. S. stated in a December 2015 letter that the Veteran was unable to work due to “multiple service related disabilities.” Dr. S. provided a supplemental letter of April 2016 and noted that the Veteran initially became unemployable in September 2010. “It is clear from the plain language of 38 U.S.C. § 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.” Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). The Veteran’s clear assertion is that he was unable to work from September 2010. There is no communication that he suffered worsening of his service-connected disabilities in the year prior to filing his claim which rendered him unable to secure or follow a substantially gainful occupation. No medical records have been submitted indicating worsening in the year prior to January 7, 2016. An earlier effective date is precluded under 38 C.F.R. § 3.400(o)(2). As to the second question, there is no evidence that the Veteran filed a formal or informal claim (prior to March 25, 2015) subsequent to the prior final denials and before the January 7, 2016 TDIU claim. The Board has closely reviewed the evidence of record, particularly over this time period, and there is no indication the Veteran sought TDIU, asserted a worsening of his disabilities, or, prior to March 25, 2017, presented an informal claim. (Continued on the next page)   In summary, the Board finds that it is not factually ascertainable that the Veteran was first unemployable in the year prior to his January 2016 claim. The Board further finds that there is no evidence that the Veteran filed any claim for a TDIU or increased rating prior to January 2016. The preponderance of the evidence is against the Veteran's claim; there is no doubt to be resolved, and an effective date prior to January 7, 2016 for the grant of a TDIU is not warranted M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel