Citation Nr: 21063926 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-18 640A DATE: October 18, 2021 ORDER Entitlement to an effective date prior to November 14, 2008 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT A TDIU claim was raised by the record no earlier than November 14, 2008. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to November 14, 2008 for the grant of a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S Army from July 1989 to July 1993, March 1995 to June 1997, and April 2004 to October 2005. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was denied by the Board in a July 2020 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (JMR), vacated the July 2020 Board decision, and remanded the issue to the Board for action consistent with the terms of the JMR. Entitlement to an effective date prior to November 14, 2008 for the grant of a total disability rating based on individual unemployability due to service connected disabilities The assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Prior to March 24, 2015, a claim was 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). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 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 intent to file a claim for VA benefits). In February 2009, the RO awarded service connection for PTSD and assigned an initial 50 percent rating, effective from June 28, 2008. In March 2009, the Veteran submitted a notice of disagreement regarding the effective date but not the 50 percent rating. The RO issued a March 2009 rating decision which granted an effective date of September 19, 2006, the date of the receipt of the claim. On September 28, 2011, the Veteran filed a claim for TDIU, which the RO also accepted as a claim for an increased rating for PTSD. The RO granted the Veteran's claim for a TDIU, effective September 28, 2011. The RO also retroactively increased the rating for the Veteran's PTSD to 70 percent effective September 19, 2006. The RO then issued a May 2019 rating decision in which it found clear and unmistakable error in the effective date initially assigned for the grant of service connection for PTSD. It corrected the effective date and the 70 percent rating for PTSD to October 29, 2005, the date after the Veteran was discharged from service, based on the fact that he filed his original claim for service connection for PTSD within one of year of separation from service. The Veteran submitted correspondence in November 2008 stating he could not find employment due to his carpal tunnel syndrome and right ear infections. The Veteran filed a formal Application for Increased Compensation Based on Unemployability that was received in September 2011 based on his service-connected PTSD, hearing condition, and left wrist condition. The July 2020 Board decision denied an effective date for a TDIU prior to the date the correspondence was received, November 14, 2008. The Veteran argues that a TDIU should be granted back to October 29, 2005, the date of his discharge and the date he was awarded service connection for PTSD. The Board finds that the date of the claim is not predicated on the previous claim for entitlement to service connection for PTSD. Under Rice v. Shinseki, a claim for TDIU is considered to be part and parcel of an increased rating claim, and therefore when evidence is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU is raised and must be addressed. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Per Rice, the Veteran can, at any time, independently assert entitlement to TDIU based on an existing service-connected disability. However, in this case the Veteran did not independently assert entitlement to TDIU based on an existing service-connected disability until September 2011. When the Veteran submitted his September 2006 claim, his only service-connected disability was residuals of left navicular fracture with nonunion, status post open reduction internal fixation with bone grating and residual limitation of motion of the interphalangeal joint of the left thumb, which was rated as noncompensable. Furthermore, when the Veteran filed his service connection claim for PTSD, he did not assert that it resulted in impairment so severe that it was impossible for him follow substantially gainful employment. The record reflects, rather, that the Veteran denied that his unemployment was due to PTSD symptoms in a January 2009 VA examination. Accordingly, the Board finds that a TDIU claim was neither expressly raised nor reasonably raised by the record within one year of service. Prior to submitting the formal claim in September 2011, the Veteran initially submitted correspondence indicating he was unemployed due to his service-connected disabilities in November 2008. In this statement, Veteran indicated for the first time that he could not find employment due to his carpal tunnel syndrome and right ear infections. As such, the Board construed this as an informal claim for a TDIU. This is the earliest indication of a TDIU claim in the Veteran's record. Therefore, the Board finds that the date the claim for TDIU was raised by the record is November 14, 2008. As noted above, the effective date of an award of compensation for a claim of entitlement to a TDIU is the later of the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(1). As the Veteran's formal TDIU claim was filed in September 2011 and the evidence first showing that entitlement to TDIU was reasonably raised by the record was the November 2008 correspondence, the Board determines that the current effective date is therefore November 14, 2008. The Board has carefully considered the arguments provided by the Veteran's representative and has considered the benefit-of-the-doubt rule in reaching this conclusion. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, an effective date earlier than November 14, 2008, for the grant of a TDIU is not warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, Associate 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.