Citation Nr: 18157105 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-38 017 DATE: December 11, 2018 ORDER An effective date earlier than December 3, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than September 5, 2013 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders is denied. An effective date earlier than December 3, 2014 for the grant of special monthly compensation (SMC) based on housebound is denied. FINDINGS OF FACT 1. The Veteran filed an application to reopen his claim of entitlement to service connection for PTSD on December 3, 2014. 2. It was not factually ascertainable that the Veteran was precluded from employment due to service-connected disorders prior to September 5, 2013. 3. The Veteran is shown to require SMC based on housebound effective December 3, 2014, the date a 100 percent rating was assigned for his PTSD based on the date of his application to reopen his claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an effective date prior to December 3, 2014 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria to establish entitlement to an effective date prior to September 5, 2013 for the grant of a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.341(a), 3.400, 4.16(a) (2017). 3. The criteria to establish entitlement to an effective date prior to December 3, 2014 for the grant of SMC based on housebound have not been met. 38 U.S.C. §§ 1114(s), 5110 (2012); 38 C.F.R. §§ 3.400(b)(2)(i), 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1974 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Los Angeles, California Regional Office (RO). The Veteran was in receipt of a TDIU from September 5, 2013 to December 3, 2014. The Veteran is in receipt of SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) from December 3, 2014 and continuing thereafter. Concerning the Veteran’s claims of earlier effective dates for TDIU and SMC based on housebound, a timely NOD was filed and a statement of the case was issued; however, no substantive appeal was filed. The RO certified the matters to the Board for adjudication as if a timely substantive appeal had been filed. Percy v. Shinseki, 23 Vet. App. 37 (2009) (recognizing that VA may waive timely filing of substantive appeal). Therefore, the Board finds that VA has waived the issue of timeliness in the Veteran’s substantive appeal. Id. at 45 (holding that the 60-day period to file a substantive appeal was not a jurisdictional bar to the Board’s adjudication of a matter, and that VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly). Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). PTSD The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2017). The term “application,” while not defined in the statute, is broadly construed by regulation to include “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) (2017). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. § 3.157(b)(1) (2017). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identifies the benefit being sought. 38 C.F.R. § 3.155(a) (2017). In his December 2017 brief, the Veteran contends that he is entitled to an effective date earlier than December 3, 2014 for the grant of service connection for PTSD because he has filed multiple claims of service connection for PTSD using the same stressor since March 26, 2005. On May 31, 2005, the Veteran filed a claim of service connection for PTSD that was denied in an August 2006 rating decision. The Veteran filed a timely NOD and a statement of the case was issued; however, no substantive appeal was filed. On December 21, 2011, the Veteran filed an application to reopen his claim of service connection for PTSD that was denied in an August 2013 rating decision due to the absence of new and material evidence. The Veteran did not file a NOD. On December 3, 2014, the Veteran filed another application to reopen his claim of service connection for PTSD. In a December 2015 rating decision, the RO granted service connection for PTSD and assigned a 100 percent rating effective December 3, 2014. While the Veteran seeks an effective date earlier than December 3, 2014, his contention overlooks the fact that the August 2006 and August 2013 rating decisions became final because he did not perfect his appeals. The effective date for service connection is a legal determination that is dependent upon the law as applied to the undisputed facts regarding the dates of receipt of the claim and the date entitlement arose. A preponderance of the evidence is against a finding of an effective date prior to December 3, 2014. The May 2005 original claim for service connection for PTSD was denied in the final August 2006 rating decision and the December 2011 application to reopen the claim of service connection for PTSD was denied in the final August 2013 rating decision. Therefore, “the claim,” for the purpose of establishing the effective date of service connection for PTSD, is the December 3, 2014 application to reopen service connection for PTSD. An effective date prior to December 3, 2014 is denied. TDIU With respect to an earlier effective date, a TDIU is a form of an increased rating claim; therefore, the effective date rules for increased ratings apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o) (2017). An effective date for a claim for increase may also be granted prior to the date of the claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(1), (2) (2017). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service- connected disorders rendered the Veteran unemployable. The Veteran contends that he is entitled to an effective date earlier than September 5, 2013 for the grant of TDIU. The Board notes that the Veteran was in receipt of a TDIU from September 5, 2013 to December 3, 2014. The Veteran first met the schedular criteria for TDIU on September 5, 2013. At that time, the Veteran’s service-connected disorders were bilateral pes planus rated 50 percent disabling from December 1, 1999 and continuing thereafter; right calf gunshot wound residuals rated 10 percent disabling from August 1, 1979 and continuing thereafter; and right calf painful scar rated 10 percent disabling from September 5, 2013 and continuing thereafter. See 38 C.F.R. §§ 3.341(a), 4.16(a) (2017). A preponderance of the evidence is against a finding of an effective date earlier than September 5, 2013. The evidence shows that the Veteran first met the schedular criteria for TDIU on September 5, 2013 and it is factually ascertainable that the Veteran’s service-connected disorders rendered him unemployable at that time. Therefore, an earlier effective date is not warranted and the claim is denied. SMC based on housebound SMC is payable at a specified rate under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound due to a service-connected disability or disabilities. 38 C.F.R. § 3.350(i) (2017). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The Veteran contends that he is entitled to an effective date earlier than December 3, 2014 for the grant of SMC based on housebound. The Veteran is rated 100 percent disabling effective December 3, 2014 for his service-connected PTSD. The Veteran’s other service-connected disorders independently ratable at 60 percent or more are bilateral pes planus rated 50 percent disabling effective December 1, 1999; right calf gunshot wound residuals rated 10 percent disabling effective August 1, 1979; and right calf painful scar rated 10 percent disabling effective September 5, 2013. (Continued on the next page)   A preponderance of the evidence is against a finding of an effective date prior to December 3, 2014. The evidence shows that the Veteran first met the statutory requirement for the grant of SMC based on housebound on December 3, 2014 due to the grant of a total disability rating for his PTSD. Therefore, an earlier effective date is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel