Citation Nr: 21063986 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-14 729 DATE: October 18, 2021 ORDER Entitlement to an effective date for the grant of a total disability rating due to individual unemployability (TDIU) prior to April 5, 2017 is denied. FINDINGS OF FACT 1. The Veteran did not submit new and material evidence after the July 2014 or November 2014 rating decision; the rating decisions are final. 2. The Veteran did not submit an informal or formal claim or appeal for a TDIU prior to the April 5, 2017 claim. 3. It is not factually ascertainable that the Veteran met the criteria for a TDIU within the year prior to the April 5, 2017 claim. CONCLUSION OF LAW The criteria for an effective date for the grant of a total disability rating due to individual unemployability (TDIU) prior to April 5, 2017 have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400; 38 C.F.R. § 3.1(p) (2014); Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) granting entitlement to a TDIU effective April 5, 2017. The Veteran appealed the effective date, and in May 2020, the Board denied the appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the matter to the Board to consider whether new and material evidence raising the issue of entitlement to a TDIU was submitted within one year of a rating decision in this case. The Court also instructed the Board to consider whether an earlier effective date is warranted on any other grounds. Entitlement to an effective date for the grant of a total disability rating due to individual unemployability (TDIU) prior to April 5, 2017 The Veteran contends that evidence submitted in pursuit of his March and September 2009 claims raised the issue of a TDIU, and thus he is entitled to an effective date prior to April 5, 2017. Specifically, the Veteran claims he is entitled to an effective date in 2011 based on his retirement date and an August 23, 2011 statement from Dr. O-V. Alternatively, the Veteran argues he is entitled to a November 2014 effective date based on the date VA granted service connection for additional disabilities that resulted in him meeting the schedular rating criteria for a TDIU, and evidence of unemployability submitted in an August 2014 VA Form 21-686C Application Request to Add and/or Remove Dependents. For the reasons below, the Board finds no new and material evidence raising the issue of entitlement to a TDIU was submitted during the appeal period for either rating decision; thus, both of these decisions are final, and an earlier effective date cannot be granted on this basis. New and Material Evidence The Board will first address whether new and material evidence raising the issue of entitlement to a TDIU was submitted within one year of the July 2014 or November 2014 rating decisions. The Veteran contends the August 2014 VA Form 21-686C submitted after the July 2014 rating decision, and an April 2015 Statement in Support of Claim submitted after the November 2014 rating decision, were new and material evidence raising the issue of entitlement to a TDIU. For the reasons below, the Board finds neither of these correspondences are new and material evidence raising the issue of entitlement to a TDIU as part and parcel of the underlying claim. The Board further finds that the Veteran did not otherwise submit a timely appeal to the July 2014 or November 2014 rating decisions. Accordingly, the July 2014 and November 2014 rating decisions are final. In general, a RO's determination that is not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108, 7105. However, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a Veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). By way of background, the July 2014 rating decision resulted from a March 2009 claim. The Veteran appealed this rating decision, and in a June 2014 decision, the Board denied the Veteran's claim for an increased rating for nasal laceration and granted an increase to 50 percent for his psychophysiologic GI reaction disability. In this decision the Board also considered whether a TDIU was raised by the record but concluded that it was not. The RO implemented the increase for the psychophysiologic GI reaction in a July 2014 rating decision. Additionally, in March 2015 the Veteran was notified of the rating decision dated November 2014. This rating decision arose from a September 2009 claim, and granted service connection for several conditions to include, as relevant here, traumatic brain injury (TBI), which was claimed as headaches. The rating decision on appeal was issued in October 2017 and granted a TDIU effective April 5, 2017. In August 2014 the Veteran submitted a VA Form 21-686C Declaration of Dependents requesting the addition of a dependent. With this form he also submitted a portion of a VA Form 29-0151 Application for Service-Disabled Veterans Insurance, wherein he indicated he had not worked since July 2011 because he is "100 percent disabled." He did not say which disabilities impaired his work. That same day he attended a VA examination for his pending claim for service connection for headaches. During this examination, the Veteran reported that he was retired, and that when he was working his headaches impaired his ability to work. This is the first VA examination indicating that any disability impaired the Veteran's ability to work; however, the Veteran's headache disability was not service connected until the November 2014 rating decision. The Veteran did not assert, and the record did not contain, any evidence that his psychophysiologic GI reaction disability, or any other service-connected disability, impaired his ability to work. The Board acknowledges the Veteran's contention that an August 23, 2011 statement from Dr. O-V reasonably raised the issue of a TDIU. In this statement, the doctor described the various psychiatric symptoms the Veteran was experiencing. The doctor did not mention any specific work-related limitations. Additionally, the record at that time did not have any evidence that the Veteran was not working due to a disability Thus, the Veteran's argument in this regard is not persuasive. Accordingly, while the August 2014 submissions are new, considered by themselves or with previous evidence of record, they do not relate to an unestablished fact necessary to substantiate the pending increased rating claim for his psychophysiologic GI reaction disability, and are therefore not material to that claim. Thereafter, in the November 2014 rating decision, the RO granted service connection for TBI (claimed as headaches), among other conditions. The Veteran was notified of this decision in March 2015. In April 2015, the Veteran submitted a Statement in Support of Claim indicating that it was in response to the March 2015 notification letter and requested "reconsideration for a TDIU" as he was not granted a total rating. As this was filed in reference to the rating decision addressing his TBI/headaches condition, this statement is reasonably construed as an assertion that this condition renders him unemployable. However, such a statement by itself, without submission or identification of lay or medical evidence supporting the contention therein, does not raise a reasonable possibility of substantiating that claim. Accordingly, the April 2015 Statement in Support of Claim, when considered by itself or with previous evidence of record, it is not new and material evidence. The Board also acknowledges the Veteran's numerous other correspondences requesting consideration of a TDIU between the March 2015 notification letter and the April 2017 TDIU application. However, for the same reasons as above, these correspondences do not constitute new and material evidence Accordingly, the Board finds that no new and material evidence raising the issue of entitlement to a TDIU was submitted within one year of a rating decision in this claim. 38 C.F.R. § 3.156(b); Rice, supra. Informal Claims The Board next turns to whether an informal claim for entitlement to a TDIU was received prior to the April 5, 2017 formal claim. For the reasons stated below, the Board finds that there were no other formal or informal claims for a TDIU pending prior to the claim filed in April 2017. The Board also finds there were no formal or informal appeals filed to either the July 2014 or November 2014 rating decisions. Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." The VA administrative claims process recognizes formal and informal claims. An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2017). Prior to March 24, 2015, the term "claim" or "application" meant 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) (2014). An informal claim must be written, and it must identify the benefit being sought. Although a claimant need not identify the benefit sought "with specificity," some intent on the part of the veteran to seek benefits must be demonstrated. Upon receipt of an informal claim, if a formal claim had not been filed, an application form would have been forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it would have been considered filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening would have been accepted as a claim. 38 C.F.R. § 3.155 (2014). However, effective March 24, 2015, all claims must be filed on standard forms prescribed by the Secretary, to include notices of disagreement (NODs). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Under current regulations, the term claim means a written communication requesting a determination of entitlement or evidencing a belief under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (2019). Under the new regulations, a Veteran or his representative may indicate his desire to file a claim for benefits by submitting an intent to file a claim form to VA identifying the Veteran. Upon receipt of the intent to file a claim, VA will furnish the Veteran with the appropriate application form prescribed by the Secretary, and if the VA receives a complete application form appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file was received. 38 C.F.R. § 3.155(b). For the reasons that follow, the Board finds that there were no formal or informal claims for a TDIU filed prior to the April 2017 formal claim. First, the Veteran claims that the August 23, 2011 statement from Dr. O-V reasonably raised the issue of a TDIU. As above, this statement did not include any information regarding the Veteran's employment status, and the record did not otherwise contain any competent evidence that the Veteran was unable to work due to disability. Under the regulations in effect prior to March 24, 2015, to be considered an informal claim, the communication or action must have identified the benefit sought. Here, the August 2011 statement did not identify that the Veteran sought any benefit related to his unemployment status. Accordingly, the statement does not constitute an informal claim. Additionally, the Veteran asserts the August 2014 submissions were an informal claim for a TDIU. As with the August 2011 statement, the August 2014 VA Form 21-686C did not identify that the Veteran was seeking a TDIU. The form indicated only that the Veteran sought additional benefits for his dependent. Further, his statement on the accompanying VA Form 29-0151 that he was 100 percent disabled was given in the context of applying for insurance and did not specify that any service-connected disabilities rendered him totally disabled. Accordingly, the August 2014 submissions do not constitute an informal claim for a TDIU. Finally, the Veteran contends that the April 2015 Statement in Support of Claim was an informal claim for a TDIU. While to Board acknowledges that this Statement in Support of Claim adequately identified the benefit sought, this statement was received after the new regulations were implemented requiring all claims to be submitted on the proper forms. Further, the Statement in Support of Claim form was not submitted on or with an intent to file form which would trigger the VA's responsibility to forward a formal application for completion. Thus, the April 2015 Statement in Support of Claim does not constitute a claim for entitlement to a TDIU. The Board also acknowledges the Veteran's numerous other correspondences requesting consideration for a TDIU between the March 2015 notification letter and the April 2017 VA Form 21-8940 submission. However, for the same reasons as above, these correspondences do not constitute formal or informal claims, to include notice of disagreement. The Board notes that VA is not required to go on a fishing expedition for evidence. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim"). Here, none of the documents identified by the Veteran can be reasonably construed as an informal claim for entitlement to a TDIU, as a notice of disagreement with a rating decision, or as new and material evidence raising the issue of entitlement to a TDIU. In summary, the Board finds the July 2014 and November 2014 rating decisions are final, and the Veteran did not submit a formal or informal claim or appeal for a TDIU prior to the April 2017 TDIU claim. Additional Bases for an Earlier Effective Date Finally, the Board will address whether there is any other basis upon which to award an earlier effective date. In claims for increased disability compensation, including entitlement to a TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). For the reasons that follow, the Board finds that it was not factually ascertainable that that an increase in disability occurred within the year prior to the April 2017 claim. Here, the Veteran met the schedular criteria more than one year prior to his April 2017 TDIU claim. He also stopped working more than one year prior to the claim. VA treatment records from April 2016 to April 2017 show fluctuation in his physical and psychiatric symptoms without a specific or continued period of worsening. For example, the Veteran reported "ups and downs" in his depressive symptoms related to life stresses. See, e.g., October 2016 and August 2017 VA treatment record. Additionally, the August 2017 psychiatric VA examination addressed the period from 2012 to the date of the exam and did not reveal any periods of worsening during that time. Regarding his physical conditions, in October 2016 the Veteran reported to his VA treatment provider that his shortness of breath upon exertion worsened in the past year. However, despite reports of fluctuating symptoms, there is no competent evidence that shows a specific time in at which it was factually ascertainable that the Veteran's service-connected disabilities worsened. In summary, the Board finds the July 2014 and November 2014 rating decisions are final, the Veteran did not submit an informal or formal claim or appeal for a TDIU prior to his April 2017 claim, and the evidence does not show that entitlement to a TDIU arose within the year prior to the April 2017 claim. Accordingly, the preponderance of the evidence is against entitlement to an effective date prior to April 5, 2017. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.