Citation Nr: A21017274
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 200407-76141
DATE: October 26, 2021

ORDER

Entitlement to an effective date of April 18, 2019 for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT

The Veteran's VA Form 21-0966, intent to file a claim was received on April 18, 2019, followed by submission within one year of a complete an application for TDIU on October 16, 2019; since then, the Veteran has continuously pursued his claim for TDIU. 

CONCLUSION OF LAW

The criteria for an effective date of April 18, 2019 for TDIU are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1966 to August 1968. 

In February 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to TDIU most recently addressed in a December 2019 rating decision.  In April 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and granted TDIU based on the evidence of record at the time of that decision.  The Veteran disagreed with the effective date assigned by way of an April 2020 VA form 10182 Notice of Disagreement and elected the direct review lane.  Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. 

Entitlement to an effective date of April 18, 2019 for a TDIU is granted.

The AOJ granted TDIU effective February 10, 2020 because that was the date VA received a letter from a physician indicating that the Veteran was unable to work due to his service-connected coronary artery disease (CAD). The Veteran contends that an earlier effective date is warranted. 

The effective date for TDIU is governed by the effective date provisions for increased ratings of 38 C.F.R. § 3.400 (o). See Hurd v. West, 13 Vet. App. 449 (2000) (applying 38 U.S.C. § 5110 (b)(2), which applies to increased rating claims, to a TDIU claim).  Generally, unless specifically provided otherwise, the effective date of an award of compensation is the date entitlement arose or the date the claim was received, whichever is later. In other words, the effective date is not earlier than the date of application. 38 U.S.C. § 5110 (a)(1); 38 C.F.R. § 3.400. VA may recognize the receipt date of an intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155 (b) ("Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received."). 

However, there is an exception for increased rating claims. That is, the effective date for an award of increased compensation shall be the earliest date on which it is factually ascertainable that the increase occurred, if the claim or intent to file a claim is received within one year from that date. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). 

In cases where an intent to file a claim is received by the VA and the claim is continuously pursued by filing timely supplemental claim, the date of claim is the date intent to file claim was received provided a complete claim application was received within a year of such date. 38 C.F.R. § 3.2500 (h); See Military-Veterans Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. July 2021). 

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

In this case, the Veteran filed an intent to file claim for TDIU on April 18, 2019 followed by a complete Application for Increased Compensation Based on Unemployability (VA form 21-8940) on October 16, 2019less than a year after the intent to file a claim. There is no earlier submission which could reasonably be construed as a claim for TDIU. The claim was continuously pursued by filing a supplemental claim, in February 2020, within less than one year of the December 2019 rating decision that initially denied entitlement to a TDIU. Therefore, the date of claim for TDIU is the date the intent to file application was received or April 18, 2019 because the Veteran continuously pursued the benefit since that date. 

The Veteran asserts that he is unable to work because of his service-connected CAD. See October 2019 VA form 21-8940. He completed one year of college and worked in farming for over 28 years (from January 1990 to September 2018). Id. At the time the Veteran filed an application for TDIU, the combined rating of his service-connected disabilities was 90 percent with his CAD rated at 60 percent. Therefore, the basic threshold for TDIU consideration was satisfied.

The Veteran underwent a VA examination in December 2019, where the examiner concluded that he was "unable to do physical labor work without becoming short of breath, fatigued, dizzy, and experiencing chest pain" because of his service-connected CAD. Based on this finding, the Board concludes that the Veteran was precluded from obtaining a job that is physically demanding or labor intensive as early as December 2019. Because his prior work experience was working on a farm for many years, he was unlikely to be able to obtain or sustain a job that does not require physical labor. Thus, the Board concludes that the December 2019 VA examination reflects that he was precluded from gainful employment at that time. 

The record does not have any other medical evidence that reflects the severity of the Veteran's CAD from the time he filed his intent to file claim in April 2019 until the examination in December 2019. Resolving reasonable doubt in the Veteran's favor, the Board finds that the severity of the Veteran's CAD likely did not change in the few months from the time he filed his claim to the date of the December 2019 examination, which entails that he was entitled for TDIU when he filed his intent to file a claim. However, the record does not have evidence that shows it is factually ascertainable that his CAD rendered him unable to secure and follow a substantially gainful occupation within one year prior to the date he filed the claim. In fact, the Veteran submitted a disability benefit questionnaire (DBQ) in May 2019, but the clinician did not complete the section regarding CAD's impact on the Veteran's ability to work. Accordingly, the Board concludes that April 18, 2019 is the appropriate effective date for TDIU, and there is no basis to award the benefit earlier than that date. 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Solomon

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.