Citation Nr: 21063674 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-08 431 DATE: October 15, 2021 ORDER An effective date of July 31, 2013, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. A claim for an increased rating for posttraumatic stress disorder (PTSD) was received by VA on July 31, 2013. 2. The Veteran met the schedular requirements for entitlement to a TDIU from July 31, 2013. 3. The competent evidence of record indicates that the Veteran's service-connected PTSD rendered him unable to sustain gainful employment since July 31, 2013. CONCLUSION OF LAW The criteria for an effective date of July 31, 2013, for the grant of a TDIU rating, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1966 to January 1968. The Veteran seeks an effective prior to October 14, 2014, for the grant of entitlement to TDIU. In particular, he and his representative have argued for various earlier effective dates, the earliest of which being July 31, 2013. See May 2016 Statement in Support of Claim and October 2021 Informal Hearing Presentation. Such is the date of his inferred TDIU claim, and the date that he first met the threshold percentage requirement for eligibility for a schedular TDIU under 38 C.F.R. § 4.16. After a careful review of the record, the Board concludes that an earlier effective date of July 31, 2013, for the grant of a TDIU rating, is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Generally, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). The effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). As the Veteran met the schedular criteria as of July 31, 2013, the Board must determine when a TDIU claim was received and when service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Review of the record shows that on July 31, 2013, the Veteran submitted an informal claim for an increased rating for PTSD. At that time, his service-connected disabilities included PTSD rated as 50 percent disabling; diabetes mellitus, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and hearing loss, rated as noncompensable. His combined disability rating was 60 percent, effective February 18, 2005. In a March 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 70 percent rating for PTSD, effective July 31, 2013, and deferred a claim for a TDIU rating, which was inferred from the Veteran's increased rating claim. In April and September 2014 rating decisions, TDIU was denied, then eventually granted in a March 2015 rating decision. Here, the Board notes that a TDIU claim is part and parcel of a higher rating when raised by the record. Accordingly, and because there were no formal or informal or implicit claims for a TDIU rating prior to that date, the earliest date of a claim for a TDIU rating is shown to be the July 31, 2013, increased rating claim for PTSD. Accordingly, the Board finds that the appropriate date of claim for the TDIU rating is July 31, 2013. Having determined the TDIU claim has been pending since July 31, 2013, the Board must address whether entitlement to TDIU is also shown since that date. In that regard, the record shows that the Veteran also did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) until July 31, 2013, and therefore the Board must determine the date entitlement arose, that is at what point in time the Veteran's service-connected disabilities, alone, rendered him unable to secure or follow a substantially gainful occupation. In this regard, the Board notes that the Veteran's currently assigned effective date of October 14, 2014, reflects the date that the AOJ found that the evidence first showed that the Veteran was unemployable, based on his service-connected PTSD. Specifically, on October 14, 2014, VA received a statement from the Veteran's treating mental health VA physician, stating that the Veteran was unemployable due to his PTSD. However, the Veteran underwent a PTSD VA examination in January 2014, which documented his previous difficulties in the workplace; he last worked in 2005. Specifically, the examiner documented the Veteran's reports of frequent conflicts and grievances filed against him. He reported that at job reviews he would be referred to as a hothead, coarse, and had a hard time interacting with people. The Veteran also reported problems with memory and concentration. Additionally, in support of his PTSD increased rating claim, the Veteran submitted a July 2013 statement from his PTSD counselor. He relayed that the Veteran's PTSD symptoms had worsened, including impairments in thought and memory and aggressive verbal communication, and that such had resulted in increased impairment in the Veteran's social and occupational functioning. The record also includes a detailed statement from the Veteran's wife, received in July 2013, recounting the realities of his impairment due to his PTSD, including deteriorating communication, memory and temperament, which the Board has given due consideration. After review of the record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the weight of the competent lay and medical evidence, as highlighted above, suggests that since July 31, 2013, the Veteran's service-connected PTSD is of such a nature and severity as to preclude him from obtaining or maintaining substantially gainful employment. Accordingly, an effective date of July 31, 2013, is granted. The Board need not consider an effective date prior to that date, as review of the record does not indicate that the Veteran met the schedular requirements for entitlement to a TDIU prior to July 31, 2013, or any prior unadjudicated TDIU claims. Furthermore, the Board notes that in the October 2021 Informal Hearing Presentation submitted by the Veteran's representative, he asserted that the Veteran sought an earlier effective date of July 31, 2013. Thus, given the record before it, the Board trusts that both the Veteran and his counsel are satisfied with this decision, such that this decision will end the current appeal. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) ("[T]he Board... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely."), aff'd, 724 F.3d 1325 (Fed. Cir. 2013); Mason v. Shinseki, 25 Vet. App. 83, 95 (2011) (holding that "the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason-be it strategy, oversight, or something in between-did not do so"); Robinson v. Peake, 21 Vet. App. 545, 554 (2008) ("The presence of [an] attorney throughout the appeals process before the Agency is a significant factor... [w]e presume that [the] attorney, an experienced attorney in veteran's law, says what he means and means what he says"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As such, this grant is considered a full grant of the issue on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.