Citation Nr: 20006196 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 17-50 175A DATE: January 24, 2020 ORDER Entitlement to an effective date prior to January 14, 2009 for the grant of TDIU is denied. FINDINGS OF FACT 1. Entitlement to TDIU was denied in a June 2006 rating decision. That decision is final. 2. A new application for TDIU was received on January 14, 2009.   CONCLUSION OF LAW The criteria for an effective date prior to January 14, 2009 for the grant of TDIU have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1963 to August 1966. He died in October 2015. The appellant claims as surviving spouse. 1. Entitlement to an effective date prior to January 14, 2009 for the grant of TDIU The appellant has challenged the effective date of the grant of TDIU, which is January 14, 2009. “Unless specifically provided otherwise in this chapter [38 U.S.C. §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110 (b)(1). Sections 3.155 and 3.157 have been amended or eliminated. However, the regulations were in force at the time of the prior decisions. “Claim” is defined broadly 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). Further, under 38 C.F.R. § 3.157 (b)(1), a report of examination or hospitalization may constitute an informal claim. Thus, 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); see also 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 an intent to file a claim for VA benefits). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). There are two elements that must be addressed. The first is whether the appellant may receive an effective date based upon the initial claim rather than a claim to reopen. The second is whether VA may have missed a pending claim filed prior to January 14, 2009. As TDIU may be considered part and parcel of an increased rating claim, a claim for an increase in any service-connected disability may also be relevant. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appellant asserts that the effective date for TDIU should be in 2005, when the Veteran first filed for TDIU. The Veteran submitted an application for TDIU in November 2005. The AOJ denied TDIU in a June 2006 rating decision. No notice of disagreement was filed. The decision was final. The Veteran filed an application for an increase in his diabetes mellitus, type II in December 2007. A rating decision was issued in June 2008, which was not appealed. The record contains no claims, either formal or informal, between the June 2008 rating decision and the January 14, 2009 claim for TDIU. The effective date is based upon law. Here, there was a prior final decision denying the benefit sought. The appellant contends that she is entitled to an effective date based on the prior claim. The attempt to revisit that prior claim and decision is prohibited as that would vitiate the concept of finality. The proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110 (a). Rudd v. Nicholson, 20 Vet. App. 296 (2006). Entitlement to an earlier effective date for the grant of TDIU is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.