Citation Nr: 21062975 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-03 786 DATE: October 12, 2021 ORDER An effective date prior to January 9, 2015 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. VA received a claim for service connection for PTSD and a back disability on January 9, 2015. 2. No claim, formal or informal, for service connection for PTSD and/or a back disability, or for entitlement to a TDIU, was received by the Department of Veterans Affairs (VA) prior to January 9, 2015. 3. The Veteran is in receipt of a TDIU for the entire initial rating period on appeal, from January 9, 2015. CONCLUSION OF LAW The criteria for an effective date prior to January 9, 2015 for the award of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from September 1966 to September 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2016 VA Regional Office (RO) rating decision that, in pertinent part, reopened and denied service connection for Peyronie's disease/a reproductive disorder, and granted service connection for posttraumatic stress disorder (PTSD) and a back disability. A notice of disagreement (NOD) disagreeing with the service connection denial and the initial disability ratings assigned for PTSD and the back was received in May 2017; however, only the reproductive service connection issue was perfected in a January 2018 VA Form 9, following the issuance of a December 2017 statement of the case (SOC). The instant matter was previously before the Board in May 2021. At that time, the Board granted service connection for the reproductive disorders of Peyronie's disease and erectile dysfunction. Further, despite the fact that the Veteran had not perfected the initial rating issues, the Board found that the issue of entitlement to a TDIU had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board remanded the TDIU issue for initial adjudication by the Agency of Original Jurisdiction (AOJ). While on remand, in an August 2021 rating decision, the AOJ granted a TDIU from January 9, 2015, the date of claim for service connection for both PTSD and the service-connected back disability. The Veteran testified at a March 2021 virtual Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. TDIU Prior to January 9, 2015 An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, 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); 38 C.F.R. § 3.151(a). 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). Having reviewed the evidence of record, lay and medical, the Board finds that the Veteran is in receipt of a TDIU for the entire initial rating period on appeal, from January 9, 2015. As discussed above, the TDIU issue on appeal stems from the Veteran's disagreement with the initial disability ratings assigned following the grant of service connection for PTSD and a back disability, effective January 9, 2015; therefore, an earlier effective date would only be warranted if a claim for a TDIU and/or for service connection for PTSD or a back disability was received by VA prior to January 9, 2015. The record reflects that no claim, formal or informal, for service connection for PTSD and/or a back disability, or for entitlement to a TDIU, was received by VA prior to January 9, 2015. As such, the Veteran is in receipt of a TDIU for the entire initial rating period on appeal, from January 9, 2015. The Board acknowledges that symptoms of PTSD and a back disability had been present for many years prior to the grant of service connection; however, while entitlement to service connection may have arisen earlier, the date entitlement arose does not decide the effective date in this case; the later date of claim for service controls the effective date. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant's claim for service connection or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Review of the record reflects that, prior to January 9, 2015, the Veteran was only service connected for the disabilities of left ear hearing loss and a left ear perforation of the ear drum, both rated as noncompensable (0 percent disabling). The Veteran did not ask for an increased rating for these disabilities at the time of the January 2015 claim, and the rating of these disabilities was not addressed at that time of the June 2015 rating decision on appeal. As such, the Rice TDIU on appeal does not attach to the left-ear disability issues. Further, neither the lay nor the medical evidence of record supports that the Veteran was unemployable due solely to the service-connected left ear disabilities at any point prior to January 9, 2015, and the Veteran has never argued as such. In sum, the evidence of record reflects that 1) the Veteran is in receipt of a TDIU for the entire initial rating period on appeal, from January 9, 2015 (stemming from the Veteran's disagreement with the initial rating assigned following the grant of service connection for PTSD and a back disorder); 2) no claim, formal or informal, for service connection for PTSD and/or a back disability, or for entitlement to a TDIU, was received by VA prior to January 9, 2015; and 3) the evidence does not support that the Veteran was unemployable due to service-connected disabilities alone prior to January 9, 2015. 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 TDIU earlier than January 9, 2015 (date of grant of service connection for PTSD and a back disability) is assignable, the appeal for an effective date earlier than January 9, 2015 for the grant of 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). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.