Citation Nr: 21074952 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-20 036 DATE: December 16, 2021 ORDER Entitlement to an effective date earlier than October 7, 2016, for the award of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. A December 2010 rating decision, in pertinent part, denied entitlement to a TDIU. The appellant was duly notified of the RO's decision and his rights in a December 2, 2010, letter. However, he did not initiate an appeal, nor was new and material evidence received within the applicable period. 2. On October 7, 2016, the appellant's claim of entitlement to a TDIU was received by VA. No claim of entitlement to a TDIU, formal or informal, or intent to seek benefits, was received prior to such date. Additionally, no intent to file was received within the year prior to October 7, 2016. 3. It is not factually ascertainable that the appellant became unable to secure or follow substantially gainful employment as a result of his service-connected disabilities in the year prior to receipt of the October 7, 2016, TDIU claim. CONCLUSIONS OF LAW 1. The December 2010 rating decision denying entitlement to a TDIU is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. The criteria for entitlement to an effective date earlier than October 7, 2016, for the award of entitlement to a TDIU have not been met. 38 U.S.C. §§ 5101, 5110 (2018); 38 C.F.R. §§ 3.400, 4.16(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from April 1968 to January 1970, including service in the Republic of Vietnam. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded entitlement to a TDIU, effective October 7, 2016. The appellant filed a timely Notice of Disagreement (NOD), received in March 2018. A Statement of the Case (SOC) was issued in June 2019. A timely substantive appeal was received in July 2019. The appellant was afforded a virtual hearing before the undersigned Veterans Law Judge (VLJ) in July 2020. A transcript is of record. Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). A TDIU claim is a claim for increased compensation; thus, the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). A "claim" is defined as 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), 3.151. Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Thus, 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); see also 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 an intent to file a claim for VA benefits); but see Sellers v. Wilkie, 30 Vet. App. 157 (2018) (a general statement of intent to seek benefits, combined with a reasonably identifiable in-service medical diagnosis reflected in service treatment records in VA's possession prior to the RO decision on the claim, may be sufficient to constitute a claim for benefits). 1. Entitlement to an effective date earlier than October 7, 2016, for the award of entitlement to a TDIU. The appellant contends that he should be awarded entitlement to a TDIU, effective April 16, 2009. For the reasons that follow, the Board finds that October 7, 2016, is the earliest effective date available under the applicable law and the facts of the case. Following receipt of a VA Form 21-526 on April 16, 2009, a November 2009 rating decision, inter alia, deferred the issue of entitlement to a TDIU. The appellant filed an NOD, received in December 2009, with respect to the issues of entitlement to service connection for a back disability and gastroesophageal reflux disease (GERD), which had been denied in the rating decision. Eventually, following issuance of an SOC and receipt of a substantive appeal, the Board awarded entitlement to service connection for a back disability, to include degenerative disc disease and cervical arthritis, and remanded the issue of entitlement to service connection for GERD in September 2017. The RO effectuated the Board's award of service connection for cervical arthritis and degenerative disc disease of the lumbosacral spine, and awarded initial 20 percent ratings for each, effective April 16, 2009, in a September 2018 rating decision. In such rating decision, the RO also granted entitlement to service connection for GERD and assigned an initial 10 percent rating, effective April 16, 2009, and awarded entitlement to service connection for radiculopathy of the bilateral lower extremities, and assigned initial 20 percent ratings for each extremity, effective April 16, 2009. The appellant was duly notified of the RO's decision and his rights in a September 10, 2018, letter. However, he did not appeal the initial ratings or effective dates assigned for any of those disabilities. As such, the decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Following additional development after the November 2009 deferral, a February 2010 rating decision, in pertinent part, denied entitlement to a TDIU. The appellant was duly notified of the RO's decision and his rights in a February 9, 2010, letter. The appellant then submitted VA Forms 21-8940, received on June 10, 2010, and September 13, 2010. A December 2010 rating decision, in pertinent part, denied entitlement to a TDIU. The appellant was duly notified of the RO's decision and his rights in a December 2, 2010, letter. However, he did not initiate an appeal, nor was new and material evidence received within the applicable period. It is not contended otherwise. As such, the decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). Received in April 2015 was a VA Form 21-4138 upon which the appellant requested a copy of his service treatment records and stated that he had an appeal waiting with the Board regarding entitlement to a TDIU. In an April 14, 2015, written statement to his congressional representative, the appellant contended that he had an appeal of entitlement to a TDIU pending with VA, but VA kept losing his appeals regarding such despite him submitting it multiple times. The congressional representative's office contacted VA by email on April 17, 2015, to inquire, and was informed in an April 27, 2015, email that VA's records revealed that a December 2010 rating decision had denied entitlement to a TDIU and that there was no pending claim or appeal for such with VA. Received on October 7, 2016, were VA Forms 21-526EZ and 21-4138, upon which the appellant claimed entitlement to, inter alia, TDIU. Received on November 8, 2016, was a VA Form 21-8940. Eventually, as delineated above, entitlement to a TDIU was awarded, effective October 7, 2016, in an April 2017 rating decision, resulting in the instant appeal. VA medical records include references to the appellant being retired from General Motors and being currently unemployed. See e.g. February 4, 2011, March 22, 2011, May 24, 2012, February 12, 2013, and March 19, 2013 clinical notes. An April 3, 2014, VA clinical note states that the appellant expressed anger about not getting unemployability. An October 22, 2015, VA psychiatric note authored by D.S.M., M.D., states that the appellant reported that he was currently unemployed, retired from GM, and pursuing unemployability. It was noted that he could not do a lot due to physical limitation. The assessment was PTSD and depression. The appellant was provided validation and empathy for his frustration and anger, and positive feedback for his effort to take care of his needs. An August 18, 2016, VA psychiatric note authored by Dr. D.S.M. includes an "other recommendation" that the appellant was not considered to engage in gainful employment for the foreseeable future. A February 2018 VA clinical note authored by Dr. D.S.M. states that the appellant had not been able to engage in gainful employment due to psychiatric illness since December 21, 2009, when he was first seen by Dr. D.S.M. During his July 2020 hearing before the undersigned, the appellant testified that Dr. D.S.M. told him that he could not work in a normal job since December 2009. He also noted that he thought Dr. D.S.M. was going to send in a statement regarding the appellant's unemployability prior to 2016, but apparently Dr. D.S.M. did not do so. As such, the appellant requested that Dr. D.S.M. put a note in his VA medical records regarding his ability to work in August 2016, which eventually occurred. Although the appellant contends that the August 2016 and February 2018 opinions of Dr. D.S.M. are sufficient to entitle him to an earlier effective date in 2009 for the award of a TDIU, as delineated above, the effective date of an award of a TDIU is the date of receipt of the claim, as the claim was not received within one year from the earliest date as of which it is ascertainable that an increase in disability had occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. For the period prior to March 24, 2015, the Board finds that no claim, formal or informal, or any intent to seek benefits, following the December 2010 rating decision was received with respect to a TDIU. The appellant and his representative have not pointed any such communication. For the period since March 24, 2015, the Board finds that no claim or intent to file was received prior to October 7, 2016. To the extent that the April 2015 VA Form 21-4138, upon which the appellant stated that he had an appeal waiting with the Board regarding entitlement to a TDIU, and/or the April 14, 2015, written statement to his congressional representative in the appellant contended that he had an appeal of entitlement to a TDIU pending with VA, but VA kept losing his appeals regarding such despite him submitting it multiple times, may be construed as an intent to seek benefits, the Board finds that such would not avail the appellant of an earlier effective date because no formal claim was received within a year of such. Rather, the October 7, 2016, claim was received more than one year after April 14, 2015. Additionally, the Board finds that it was not factually ascertainable in the year preceding October 7, 2016, that the appellant became unable to secure or follow a substantially gainful occupation due to service-connected disability. The appellant and his attorney do not contend otherwise. Rather, it is contended that the appellant became unemployable in 2009. The opinion of Dr. D.S.M. is also that the appellant became unemployable in 2009. As such, even though it was added to the appellant's VA medical records in August 2016, an effective date earlier than October 7, 2016, cannot be granted based on such. Finally, to the extent that entitlement to a TDIU is part and parcel of a claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the appellant did not file a timely NOD with respect to the initial ratings assigned for cervical arthritis, degenerative disc disease of the lumbosacral spine, GERD and/or radiculopathy of the bilateral lower extremities in the aforementioned September 2018 rating decision, all effective April 16, 2009. It is not contended otherwise. Thus, an earlier effective date for the award of a TDIU would not be available under Rice. Accordingly, for the reasons set forth above, the Board finds that the appellant has therefore been assigned the earliest effective date for TDIU allowed under the applicable regulations. For the reasons and bases expressed above, the Board finds that an effective date for the award of a TDIU prior to October 7, 2016, is not warranted. The benefit sought on appeal is therefore denied. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.