Citation Nr: 18158239 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-59 683 DATE: December 14, 2018 ORDER An effective date prior to September 27, 2004, for the grant of total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A December 28, 2005, decision by the Board of Veterans’ Appeals (Board) denied entitlement to TDIU; the Veteran appealed the December 2005 denial to the United States Court of Appeals for Veterans Claims (Court); and in October 2007, the Court affirmed the Board’s December 2005 decision. 2. Entitlement to TDIU arose the day after the final December 2005 Board decision. CONCLUSIONS OF LAW 1. The Board’s decision denying entitlement to TDIU became final effective December 28, 2005. 38 U.S.C. § 7104, 7252, 7292; 38 C.F.R. § 20.1100. 2. Entitlement to an effective date prior to September 27, 2004, for the grant of TDIU is denied. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19, 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to January 1975 and from September 1985 to July 1991. This matter comes before the Board on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2013, December 2013, and July 2016, on which occasions it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A September 2016 rating decision granted an earlier effective date for the grant of TDIU, and awarded TDIU as of September 27, 2004. Although an earlier effective date was granted, it did not constitute a full grant of the benefits sought, and thus remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Entitlement to an effective date prior to September 27, 2004, for the grant of TDIU. Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is 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. A December 28, 2005, Board decision denied entitlement to TDIU; the Veteran appealed the December 2005 denial to the Court; and in October 2007, the Court affirmed the Board’s December 2005 decision. The Veteran did not appeal the Court’s October 2007 affirmance; therefore, the December 2005 Board decision became final. 38 U.S.C. § 7104. As the December 2005 Board decision is final, the Board does not have jurisdiction to readjudicate any period encompassed by the December 28, 2005, Board decision. In other words, as a matter of law, the earliest effective date for entitlement to TDIU is December 29, 2005, or the date following the issuance of the December 28, 2005, Board decision denying entitlement to TDIU. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. To look at it another way, the Board notes that even if the date of claim was prior to September 27, 2004, the Board finds that the date entitlement arose to TDIU is the day following the final December 2005 Board decision that denied TDIU. Accordingly, the claim of entitlement to an effective date prior to September 27, 2004, for the grant of TDIU is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel