Citation Nr: 20044526 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-19 972 DATE: July 2, 2020 ORDER Entitlement to an effective date of November 8, 2011, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. The Veteran did not appeal the July 2010 rating decision that denied a claim for a TDIU and an increased rating for posttraumatic stress disorder (PTSD), new and material evidence was not received by the agency of original jurisdiction (AOJ) within the one-year appeal periods, and the regional office (RO) did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the July 2010 rating decision that it had prior knowledge off and which are new and material evidence. 2. During his life-time the Veteran did not have a claim for an increased rating for either of his service-connected disabilities (i.e., PTSD and malaria) pending at any time from the time the July 2010 rating decision denied a claim for an increased rating for PTSD until the time it granted him a TDIU effective from November 8, 2012. 3. As required by the January 2020 Joint Motion for Remand, the Board finds that the January 18, 2011, VA treatment record that reported that the Veteran was “not working – on disability due to psych history,” cannot act as an earlier informal claim for a TDIU because it did not communicate in writing the Veteran’s intent to file a claim for a TDIU. It is not a “claim” under VA law. 4. The Veteran did not submit a claim, either formal or informal, for a TDIU earlier than November 8, 2012. 5. There was a factually ascertainable worsening of the Veteran’s service-connected PTSD symptoms so that he met the criteria for a TDIU as of November 8, 2011. CONCLUSION OF LAW The criteria for an effective date of November 8, 2011, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from September 1967 to June 1970 with service in the Republic of Vietnam. The Veteran passed away in October 2017. In November 2018, the Veteran’s widow was substituted as the appropriate party. In March 2019, a Veterans’ Law Judge other than the undersigned issued a decision that denied the claimant’s appeal. The claimant appealed the March 2019 Board of Veterans’ Appeal (Board) decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent January 2020 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the March 2019 Board decision. The Earlier Effective Date Claim In light of the findings of the JMR, the Board believes it must make unequivocal findings regarding the law on this issue and the facts in this case. As noted in the JMR, the claimant asserts, in substance, that the Veteran’s TDIU should be effective earlier than November 8, 2012, because a January 18, 2011, VA treatment record reported that he was “not working – on disability due to psych history, ” and under 38 C.F.R. § 3.157(b)(1) this VA treatment record acted as an earlier informal claim for a TDIU. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). As to claims, like the current earlier effective date claim, filed before March 24, 2015, the term “claim” or “application” means 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). Before March 24, 2015, the term “claim” or “application” meant 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. It is very important for the appellant to understand, and notwithstanding the language found in the JMR, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See 38 C.F.R. § 3.156(b)(1); 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); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). Simply stated, to receive VA compensation, or more VA compensation, the claimant in most cases must ask for it, in writing. There are only very limited exceptions to this rule that are unmistakably not met in this case. 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. If a Veteran file’s a claim for benefits with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. For an increase in disability compensation including a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Horton v. Wilkie, No. 18-6269, 2020 U.S. App. Vet. Claims LEXIS 240 (Vet. App. Feb. 12, 2020); Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above laws and regulations in mind, the record shows that a July 2010 rating decision denied the Veteran’s claim for a TDIU as well as an increased rating for PTSD. The Veteran did not appeal the July 2010 rating decision. See 38 C.F.R. § 20.302(a). The Board also finds that additional records were not received by the RO in the first year following the July 2010 rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the July 2010 rating decision that it had prior knowledge off and which are new and material evidence even though the record subsequently shows that the Veteran continued to receive treatment for PTSD during this time. See Turner, super. Furthermore, the appellant has not ever claimed that there was CUE in the July 2010 rating decision. See 38 U.S.C. § 7105; 38 C.F.R. § 3.105. Accordingly, the Board finds that the July 2010 rating decision which denied the Veteran’s claim for a TDIU and an increased rating for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Consequently, the Board finds that effective date for the assignment of the TDIU may be no earlier than a new application; at some point in time after the final July 2010 rating decision. With the above criteria in mind, the record shows that the RO’s September 2013 rating decision that granted the Veteran a TDIU effective from November 8, 2012, because this was the date that it received his claim. In this regard, the Board first notes that the record does not reveal an earlier formal claim for a TDIU as defined by 38 C.F.R. § 3.400. Therefore, the Board finds that this avenue cannot provide a basis for granting the appellant an earlier effective date for the TDIU. The Board also finds that the record does not reveal an earlier informal claim for a TDIU as defined by 38 C.F.R. § 3.1(p). In this regard, the Board finds that even when considering the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Veteran during his life-time did not have an informal claim as defined by 38 C.F.R. § 3.1(p) for a TDIU pending at any time from July 2010 to November 8, 2012, because during his life-time he did not have a claim for any increased rating for either of his service-connected disabilities (i.e., PTSD and malaria) pending at any time from July 2010 to November 8, 2012, the key time frame in question. Moreover, in reaching the above conclusion, the Board has not overlooked the JMR and its’ citation to 38 C.F.R. § 3.157(b)(1) for the proposition that the Veteran’s January 18, 2011, VA treatment record which reported that he was “not working – on disability due to psych history, ” acted as an earlier informal claim for a TDIU because it showed a worsening of his service-connected PTSD symptomatology. Simply stated, it does not. Even if the Board conceded for the limited purpose of this decision that the Veteran’s January 18, 2011,VA treatment record or any of his July 2010 to November 2012 VA treatment records showed a worsening of his service symptomatology for his service connected PTSD and/or malaria prior to November 8, 2012, it nonetheless finds that the VA treatment records do not include a communication, in writing, of the Veteran’s intent to file a claim for a TDIU as required by 38 C.F.R. §§ 3.157(b)(1) and MacPhee, super. Therefore, notwithstanding the language found in the JMR, the Board finds that the VA treatment records do not act as an earlier informal claim for a TDIU as defined by 38 C.F.R. § 3.1(p) because neither the January 18, 2011,VA treatment record or any of the July 2010 to November 2012 VA treatment records contained the required written communication. Also see 38 U.S.C. § 5110; 38 C.F.R. §§ 3.157(b)(1), 3.400; MacPhee, super. Accordingly, because the VA treatment records are not an earlier informal claim for a TDIU as defined by 38 C.F.R. § 3.1(p), the Board finds that this avenue can also not provide a basis for granting the appellant an earlier effective date for the Veteran’s TDIU. This does not end the Board’s review of this case. The Board will consider whether there was a factually ascertainable worsening of the Veteran’s service-connected symptoms so that he met the criteria for a TDIU at any time in the one-year period prior to November 8, 2012. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Horton, supra; VAOPGCPREC 12-98. This is a key issue. In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16(b). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. With the above criteria in mind, the Board notes that during the November 8, 2011, to November 8, 2012, time-period, the Veteran was service-connected for the following disabilities: • PTSD rated as 70 percent disabling; and • Malaria rated as 0 percent disabling. In summary, this record shows that the Veteran met the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) from November 8, 2011, to November 8, 2012, because he now had two or more service-connected disabilities with one disability rated at 40 percent or higher with his combined rating being 70 percent. The question for the Board to consider is when, if ever, his service-connected disabilities rendered him incapable of substantial gainful employment at any time from the November 8, 2011, to November 8, 2012. 38 C.F.R. § 4.16(a). In this regard, during his life-time the Veteran provided the RO with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, dated in February 2010, in which he reported that he had not worked full-time since December 2007 and became too disabled to work in January 2008 because of his service-connected disabilities. As to his work history, the Veteran reported that from December 1997 to December 2007 he worked as a Quality Inspector for Chrysler Corporation. As to his education, the Veteran reported that he had an 8th Grade education. Significantly, as to the Veteran’s being able to work performing jobs that require non-sedentary and sedentary employment, including his past employment as a Quality Inspector as well as other possible employment that could make use of his work experience and 8th Grade education, the Board finds that the treatment records generated during the November 8, 2011, to November 8, 2012, time-period showed that the problems caused by his service-connected PTSD would adversely impact his ability to work in either of these fields because he could neither get along with his boss, co-workers, or customers nor be able to learn any carryout the new tasks required by his employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD would have made it dangerous for the Veteran and his co-workers for him to have worked in most non-sedentary employments. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities would have prevented him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, his education, and the impact his service-connected PTSD would have maintaining non-sedentary and sedentary employment including in his past employment as a Quality Inspector for Chrysler Corporation because of the problems his PTSD would cause in any work environment. Lastly, the Board notes that there are some gaps of information in this case. However, the Board is attempting to address this issue without a remand to the RO for more development in light of the appellant’s age and the length of time her appeal has been pending as well as to avoid any further litigation. A remand would delay the full adjudication of this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In summary, the Board finds that the most probative evidence of record shows that the during the one-year look back period the Veteran’s VA treatment records show that his service-connected PTSD met the criteria for a TDIU from November 8, 2011, because it rendered him incapable of substantial gainful employment since that time. 38 C.F.R. § 4.16(a). Accordingly, the Board finds that the appellant is entitled to an earlier effective date of November 8, 2011, but no earlier, for the award of the Veteran’s TDIU and, to this extent, her appeal is granted. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Horton, supra; VAOPGCPREC 12-98. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel 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.