Citation Nr: 21001432 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-53 207 DATE: January 8, 2021 ORDER An effective date prior to March 17, 2016 for a 70 percent evaluation for posttraumatic stress disorder (PTSD) with alcohol dependence is denied. An effective date prior to March 17, 2016 for a 40 percent evaluation for traumatic brain injury (TBI) with headaches is denied. An effective date prior to March 17, 2016 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. An October 2012 rating decision that granted a single 30 percent disability rating for PTSD and TBI became final when the Veteran withdrew the appeal on March 17, 2016. 2. On March 17, 2016, the Veteran submitted claims for increased evaluations for PTSD and TBI as well as a claim for entitlement to TDIU. 3. The record includes no factually ascertainable evidence demonstrating that a 70 percent rating for PTSD with alcohol dependence was warranted in the one-year period prior to March 17, 2016; and, there is no evidence of any earlier pending formal or informal claim. 4. The record includes no factually ascertainable evidence demonstrating that a 40 percent rating for TBI with headaches was warranted in the one-year period prior to March 17, 2016; and, there is no evidence of any earlier pending formal or informal claim. 5. There is no legal or factual basis for an effective date earlier than March 17, 2016, for the award of TDIU. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 17, 2016, for the grant of a 70 percent rating for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.400. 2. The criteria for an effective date earlier than March 17, 2016, for the grant of a 40 percent disability rating for TBI are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.400. 3. The criteria for an effective date earlier than March 17, 2016, for the grant of TDIU are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2004 to September 2011. In November 2020, he testified at a teleconference Board hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Effective Dates The Veteran is seeking an effective date earlier than March 17, 2016, for the assignment of the 70 percent disability rating for PTSD, the 40 percent disability rating for TBI and the award of his TDIU. Generally, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Prior to March 25, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1 (p). The record shows that an October 2012 rating decision granted service connection for PTSD and TBI and assigned a single 30 percent disability rating effective from September 28, 2011. In October 2013, the Veteran filed a notice of disagreement with the evaluation assigned. In March 2016 he submitted a written statement indicating that he wished to withdraw his pending PTSD and TBI appeal in accordance with the provisions of 38 C.F.R. § 20.205. See March 2016 VA Form 21-4138 (Statement in Support of Claim). The Veteran also submitted a claim VA Form 21-526EZ, seeking increased evaluations for PTSD and TBI and a VA Form 21-8940 for TDIU. He was afforded a VA examination in May 2016, which showed his PTSD manifested in occupational and social impairment with reduced reliability and productivity consistent with a 50 percent disability rating. Symptoms included depressed mood, anxiety, chronic sleep impairment, impairment of short-and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances/work or a worklike setting, impaired impulse control, unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. A June 2016 rating decision awarded a 70 percent rating for PTSD, effective March 17, 2016, the date of the claim. A separate 40 percent disability rating was assigned for TBI residuals also effective March 17, 2016 based on the results of a May 2016 VA examination which showed impairment of cognitive function manifested by level “2” severity for memory and communication facets consistent with a 40 percent rating. The Veteran disagreed with these determinations and initiated this appeal, arguing that an effective date of September 28, 2011 is warranted based on the date he originally filed his claim. He asserted, including at his 2020 Board hearing, that he withdrew his claim in October 2013 based on misinformation given to him by his representative at the time, and that the appeal 2012 rating decision remained pending. However, there is no independent evidence on file to support this contention. The Board finds that after the March 2016 statement, there is no further communication or action by the Veteran himself that calls into question whether he intended to withdraw his pending PTSD and TBI claims. Because he withdrew the notice of disagreement, the October 2012 rating decision became final. See 38 C.F.R. §§ 20.201, 20.205, 20.1103. The effect of this finality is to preclude an award of an effective date prior to that denial. For a veteran to be awarded an effective date based on a final claim, he or she must show clear and unmistakable error (CUE) in the prior denial of the claim. Rudd v. Nicholson, 20 Vet. App. 296, 299-00 (2006). In this case, the Veteran has not raised a claim for CUE in the October 2012 rating decision, therefore, it is not before the Board. A review of the record reveals that there were no other pending, unadjudicated claims for higher ratings for PTSD and TBI between the final October 2012 rating decision and the March 17, 2016 claim for increased ratings. Given the finality of the October 2012 rating decision, the only way (absent clear and unmistakable error in a past decision) to assign an earlier effective date would be if it was factually ascertainable that an increase in PTSD and TBI residuals occurred in the year prior to the March 2016 claim. 38 C.F.R. § 3.400(o)(2). In the current appeal, there is simply no evidence pertaining to the Veteran’s PTSD and TBI disabilities added to the record in the year prior to his March 2016 claim. Due to the lack of clinical findings, the severity of PTSD required for a 70 percent evaluation and the separate 40 percent evaluation for TBI residuals is not present prior to March 17, 2016. Absent earlier unadjudicated claims for increased ratings for PTSD and TBI prior to the current effective date of March 17, 2016, or evidence showing an increase in disability within one year prior to the date the claim was received, the claims for earlier effective dates are denied. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107. TDIU The Veteran contends that TDIU is warranted prior to March 17, 2016. Specific argument in support of this appeal has not been submitted. See November 2020 Board testimony. A TDIU claim is one for increased compensation, and the effective date rules for increased compensation therefore apply to a TDIU claim. See Hurd, 13 Vet. App. 449. As noted above, the appeal as to the effective date assignable for an increased rating rests on two separate, relatively simple determinations. First, there needs to be a finding as to when a claim for TDIU was received and second when entitlement to TDIU arose, whichever is later. 38 C.F.R. §§ 3.155, 3.400(o). An exception to the rule that the effective date cannot be earlier than the date of claim applies when the evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the effective date can go back to the date on which the evidence shows an increase. 38 C.F.R. § 3.400(o)(2). In the present case VA received the Veteran’s notice of intent to file a claim for compensation on March 17, 2016. Soon thereafter he filed a formal claim for TDIU. See March 2016 VA Form 21-8940. TDIU was subsequently granted with an effective date of March 17, 2016. There is no prior claim of entitlement to TDIU that was received by VA, nor is there a reasonably raised claim for TDIU prior to the receipt of the March 2016 application. (Continued on the next page)   In his formal claim for a TDIU rating, the Veteran reported that he became too disabled to work in 2013, which is more than one year prior to the date the March 2016 application was received. In order for him to be entitled to an effective date within one year of the March 2016 application, the increase in disability (unemployability) needs to have occurred (have been factually ascertainable) within one year prior to the claim. However, if the unemployability, occurred more than one year prior to the claim, the increase is effective the date of claim. Here, the date of claim is March 17, 2016, which is almost 3 years after the date the Veteran reports he became too disabled to work. There are also no treatment records between March 2015 and March 2016 that address employability. As it is not factually ascertainable that the Veteran’s unemployability due to service-connected disabilities began in the one-year period prior to the March 17, 2016 date of claim, an effective date prior to the claim is not warranted. Thus, the proper effective date for the award of the Veteran’s TDIU rating is March 17, 2016, the date of claim. In this case the earliest possible effective date provided by law has already been assigned. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.