Citation Nr: 21070378 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-60 590 DATE: November 23, 2021 ORDER Entitlement to an effective date for total disability rating based on individual unemployability (TDIU) effective April 2, 2014, is granted. FINDINGS OF FACT The issue of TDIU was reasonably raised before the regional office in July 2014 when an increased disability rating for posttraumatic stress disorder was granted. From April 2, 2014, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his posttraumatic stress disorder (PTSD) and additional service-connected disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an earlier effective date of April 2, 2014 for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5110, 5107 (2012); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served during the Vietnam Era in the United States Army from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement (NOD) in August 2017. The RO issued a statement of the case (SOC) in November 2017. The Veteran filed a VA Form 9 in November 2017 requesting a hearing before the Board. The Veteran attended a hearing undersigned Veterans' Law Judge (VLJ). This matter is now properly before the Board. 1. Entitlement to a TDIU effective April 2, 2014. The Veteran contends that he is entitled to an earlier effective date of April 2, 2014, for the grant of service connection for PTSD. Having reviewed the evidence of record in a light most favorable to the Veteran the Board finds, as outlined below, that an effective date of April 2, 2014, is warranted. Generally, the effective date of an award shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application. The effective date of an award of compensation for service connection will be the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2) (2012); see also 38 U.S.C. § 5110(a) (West 2012); Sears v. Principi, 16 Vet. App. 244 (2002). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to develop a Veteran's claim fully and sympathetically to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Additionally, a claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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 a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2020); see also Van Hoose v. Brown, 4 Vet. App. 361(1993). The Veteran requested an increased evaluation for PTSD in April 2014, noting that this condition had worsened since the previous rating. In July 2014, the Veteran was granted an increased disability rating for his posttraumatic stress disorder (PTSD) from 10 percent disabling to 70 percent disabling effective April 2, 2014. At the time of the July 2014 rating decision, the evidence of record suggested that the Veteran's PTSD was causing unemployability. The Veteran was granted an increased disability rating of 70 percent based in part on difficulty in adapting to work and near continuous panic affecting the ability to function independently, appropriately, and effectively. The Veteran's claim for a TDIU was initially denied in a rating decision issued by the RO in November 2015. This decision followed a statement dated July 2014 (received by VA in August 2014) in which the Veteran indicated that he could not work because he could not concentrate. This caused difficulty doing any kind of job. This statement was received within less than one year of the July 2014 rating decision granting an increased evaluation of 70 percent for PTSD. The Veteran then filed a formal claim for unemployability in August 2015. The Veteran again alleged he was entitled to unemployability benefits on a VA Form 21-526EZ received in April 2016. The Veteran was again denied entitlement to TDIU benefits in an April 2016 rating decision. The Veteran then filed a new claim for TDIU in April 2017. All claims and correspondence were received within less than one year of the prior denials of record. In a July 2017 rating decision, the RO granted the Veteran's claim for TDIU effective April 17, 2017, the date the Veteran filed what was deemed to be his most recent claim for TDIU. The Veteran filed a notice of disagreement (NOD) challenging the effective date and contending that he is entitled to TDIU on the same date that the 70 percent disability rating for PTSD became effective, April 2, 2014. The Veteran contends that he has been unable to work since 2011. The Veteran contends that his PTSD symptoms made him unable to maintain gainful employment and that it was the cause of his retirement. The Veteran testified in January 2021 before the undersigned VLJ that he was told by his employer that he would either be terminated or that he would be able to take early retirement due to his inability to get along with people in the workplace. The Veteran testified that he chose to retire due to the possibility of being terminated by his employer. The Veteran was granted an increased disability rating for his service-connected PTSD due in part to his difficulty in adapting to work and near continuous panic affecting the ability to function independently, appropriately, and effectively. The Veteran's increased disability rating for PTSD became effective April 2, 2014. The Veteran contends that the worsening in his PTSD resulted in him being unable to maintain gainful employment. The Board finds that the Veteran is indeed entitled to the earlier effective date for TDIU of April 2, 2014, the date of the Veteran's increased rating claim for his PTSD. When considering the Veteran's combined disabilities, he met the schedular criteria in that his combined rating was 70 percent or more, with one disability rated at 40 percent or more. See 38 C.F.R. § 4.16 on April 2, 2014 when PTSD was increased to 70 percent disabling. As such the schedular criteria have been met effective April 2, 2014. The Board finds that a claim for TDIU was in fact pending at the time of the July 2014 rating decision. Further, there is competent and credible evidence since the date of receipt of the Veteran's increased rating claim on April 2, 2014, that he was unable to secure and maintain substantially gainful employment due to his service-connected disabilities. The Board finds that based on the evidence of record an earlier effective date of April 2, 2014 is warranted for the grant of TDIU. The Board finds that the totality of the evidence of record indicates that it is factually ascertainable that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected PTSD and additional service-connected disabilities since April 2, 2014 forward. With respect to an effective date earlier than April 2, 2014, the Board notes that generally the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2020). The Veteran's TDIU claim was part and parcel of his increased rating claim, filed on April 2, 2014. There is no evidence of record indicating a formal or informal claim prior to this date or earlier records showing a factual increase in severity of the claimed disabilities such that the Veteran was unable to sustain substantially gainful employment. As such, the proper effective date can be no earlier than the date of receipt of the increased rating claim April 2, 2014. As such the Board finds that the criteria for an effective date of April 2, 2014 forward, but no earlier for entitlement to TDIU have been met. Considering all lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of July 20, 2015, the date of receipt of the increased rating claim, is warranted. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400, 4.16 (2020). The Board finds that when resolving all reasonable doubt in favor of the Veteran, the Veteran is entitled to a TDIU effective April 2, 2014. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.