Citation Nr: 21004589 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-20 136 DATE: January 27, 2021 ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to October 3, 2012. ORDER Entitlement to a TDIU prior to October 3, 2012, is denied. FINDINGS OF FACT 1. The Veteran was denied service connection for anxiety disorder and panic attacks in a March 2003 Regional Office (RO) rating decision that subsequently became final. 2. On October 3, 2012, VA received the Veteran’s formal claim to reopen the issue of service connection; in a July 2013 rating decision service connection was granted for panic disorder with agoraphobia claimed as anxiety disorder. 3. No claim, formal or informal, to reopen service connection was received by the Department of Veterans Affairs (VA) prior to October 3, 2012. 4. Prior to October 3, 2012, the Veteran was not service connected for any disability. 5. In an August 2020 rating decision, the evaluation of panic disorder with agoraphobia was increased to 100 percent effective October 3, 2012, the date of service connection. 6. No claim, formal or informal, for entitlement to a TDIU was received by VA prior to October 3, 2012. 7. The Veteran has had a total disability rating for compensation of 100 percent (which renders his TDIU claim moot) since October 3, 2012; and the evidence does not support an award of TDIU prior to October 3, 2012. CONCLUSION OF LAW The criteria for a TDIU prior to October 3, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1965 to May 1966. In October 2016 the Veteran and his spouse testified before the undersigned during a videoconference hearing; a copy of the transcript is of record. During the October 2016 hearing, the Veteran stated that he could not maintain any type of gainful employment due to his service-connected panic disorder with agoraphobia, claimed as anxiety disorder. Therefore, the Board of Veterans’ Appeals (Board) listed the raised TDIU claim as an additional issue on appeal in a July 2018 remand. Rice v. Shinseki, 22 Vet. App. 447 (2009). When this case was previously before the Board in July 2018, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Significantly, the Board remanded the issue of entitlement to an initial disability rating in excess of 70 percent for the panic disorder with agoraphobia, claimed as anxiety disorder. Subsequently, in an August 2020 rating decision, the evaluation of panic disorder with agoraphobia was increased to 100 percent effective October 3, 2012, the date of service connection. As such, this is a full grant of the benefit sought, and that issue is no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Legal Criteria Analysis The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As to what constitutes a claim, 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) (2012); 38 C.F.R. § 3.151 (a) (2018). The term “claim” means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2018). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400 (o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015. Id. at 57,686. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. 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. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2014). Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157 (a) (2014). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157 (b) (2014). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157 (b)(2) (2014). A TDIU may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to preclude securing or following substantially gainful employment without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a). In claims for TDIU, whether under 4.16(a) or 4.16(b), the issue is whether the veteran’s service-connected disability(s) alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). As noted above, the Veteran has had a total disability rating for compensation of 100 percent (which renders his TDIU claim moot) since October 3, 2012. The Veteran contends that he is entitled to a TDIU prior to October 3, 2012. Prior to October 3, 2012, the Veteran was not service connected for any disability. That is, the Veteran was granted service connection for panic disorder with agoraphobia as of October 3, 2012. Thus, the Veteran did not meet the schedular criteria for TDIU prior to October 3, 2012. See 38 C.F.R. § 4.16 (a). As such, an earlier effective date for the TDIU is not possible unless the Board first finds that an earlier effective date for the grant of service connection for panic disorder with agoraphobia is warranted. See 38 C.F.R. § 4.16 (TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities). The Veteran was denied service connection for anxiety disorder and panic attacks in a March 2003 rating decision that subsequently became final. On October 3, 2012, VA received the Veteran’s formal claim to reopen the issue of service connection. In a July 2013 rating decision, service connection was granted for panic disorder with agoraphobia claimed as anxiety disorder, effective October 3, 2012. Review of the record reflects that no claim, formal or informal, to reopen service connection was received by VA prior to October 3, 2012. As such, the Board does not find that an earlier effective date for either anxiety disorder and panic attacks or TDIU is warranted from October 3, 2012. On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, and no effective date for the award of service connection earlier than October 3, 2012 (date of receipt of formal claim to reopen service connection) is assignable, the appeal for an earlier effective date as to the issue of entitlement to a TDIU is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that entitlement to a TDIU prior to October 3, 2012, is not warranted as a matter of law. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.