Citation Nr: 21067725 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-45 235 DATE: November 5, 2021 ORDER Entitlement to an effective date prior to November 12, 2009, for the grant of total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran did not timely file a notice of disagreement with the October 1, 2008, rating decision, and no new and material evidence was received pertaining to the issue of employability within one year of the October 1, 2008, rating decision. 2. The Veteran filed his most recent claim for a TDIU on November 12, 2009, and the most probative evidence of record does not show an intent to file a claim for TDIU between October 2008 and November 2009. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to November 12, 2009, for the grant of TDIU have not been met. 38 U.S.C. §§ 5110, 7105(c); 38 C.F.R. §§ 3.104, 3.157, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to July 1970, and from July 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date prior to November 12, 2009, for the grant of TDIU Pursuant to an August 2017 Board decision, TDIU was granted in a September 2017 rating decision effective November 12, 2009, the day the Veteran filed his most recent formal claim for TDIU. The Veteran contends that TDIU is warranted prior to November 12, 2009, because the Veteran met the schedular rating criteria at the time he submitted his original claim for TDIU on April 25, 2008. Additionally, the Veteran contends that the effective date of the award of TDIU should be in 2005 because the Veteran was never given a medical clearance to return to work by his treating orthopedic physicians after his 2004 knee replacement surgery. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). However, for an increase in disability compensation, to include a claim for TDIU, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2) (2017). In Rice v. Shinseki, 22 Vet. App. 447 (2009), 22 Vet. App. 447, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. In an October 2008 rating decision, the RO denied TDIU. The Veteran did not file a notice of disagreement with the October 2008 rating decision, nor was new and material evidence relating to the issue of unemployability received within one year of the October 2008 rating decision. As such, the October 2008 rating decision became final. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 20.1103. Previous determinations which are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105. In this regard, the Board acknowledges that the Veteran generally alleged CUE in statements from November 2017 and September 2018. In a November 2017 statement, the Veteran referenced the October 2008 rating decision and stated that he believed that an effective date in 2005 would be appropriate because he was never given a medical clearance from his treating orthopedic physicians to return to work after his 2004 knee replacement surgery. Additionally, in a September 2018 statement, the Veteran stated that he believed that the Department of Veterans Affairs made an error not taking into consideration that the medical staff at the VA medical center where his surgery was performed, and past operative care was given never gave him a medical clearance to return to work. The Veteran contended that "[w]ithout the medical clearance the employer would not have allowed me to return to work." The Veteran also alleged that the large number of subsequent medical appointments he underwent was not taken into consideration. A prior final decision may not be reversed or revised in the absence of CUE. See 38 U.S.C. § 5109A. To establish a valid CUE claim, a claimant must show that there was an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). The party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a CUE. Berger v. Brown, 10 Vet. App. 166, 169 (1997). Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity, and only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The Board finds that the Veteran has not made any sufficiently specific allegations of impropriety, misapplication of law or regulations, or factual inaccuracy with respect to the final relevant RO and Board decisions in this case. In this instance, the Veteran has merely expressed disagreement as to how the facts were weighed or evaluated. Specifically, the Veteran alleges that the fact that he was not given medical clearance to return to work from his healthcare provider was not given the proper consideration. As noted, mere general assertions may not establish CUE, nor do they meet the threshold pleading requirements. Accordingly, the Board finds the Veteran has not raised a valid allegation of CUE. Furthermore, the Board notes that this case is distinguishable from Rice because Rice involved entitlement to an earlier effective date for TDIU following the grant of TDIU, whereas this Veteran's case involves a prior final decision denial of TDIU (in October 2008). The Court in Rice held that the claim for TDIU was not inseparable from the claim for a higher initial rating when new evidence was submitted within one year of the RO's decision assigning an initial rating for the underlying disability. This is not at issue in this instance because of the finality of the October 2008 TDIU rating decision, and the differing facts. This case is distinguishable from Rice because in this Veteran's case the AOJ has separately developed, adjudicated, and denied the Veteran's TDIU claim, and has done so in a rating decision that has become final. The holding in Rice does not extend to override finality of the October 2008 final denial of TDIU, both for the reasons stated distinguishing this case from Rice, and since the Court issued the Rice decision in 2009, it has not issued a precedential decision extending the generalized principle of attachment of TDIU to a rating appeal in Rice to override legal finality of an adjudication specifically denying TDIU that was raised and adjudicated during a still open rating period. In the absence of such precedent, the finality of a prior final decision must be respected in VA adjudications. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.105, 20.1103; see also 38 U.S.C.§ 5110 and 38 C.F.R. § 3.400(o) (implicitly recognizing that there must be a claim for increase, formal or informal, to be compared with the factual date of worsening, to determine an effective date). Looking to evidence of record prior to November 12, 2009, there is no communication between the last final October 2008 rating decision and the November 12, 2009, claim for TDIU, nor did TDIU become factually ascertainable within one year of any increased rating claim filed after the October 2008 rating decision that would suggest an effective date prior to November 12, 2009. See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). The most probative evidence of record shows that the earliest effective date available for the grant of a TDIU is November 12, 2009. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.