Citation Nr: A21019682 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 211025-193426 DATE: December 9, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for a right ankle disability is dismissed. Entitlement to an effective date prior to February 20, 2020 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. There is no case or controversy within the Board's jurisdiction regarding the issue of entitlement to a rating in excess of 20 percent for a right ankle disability. 2. On February 20, 2020, the Veteran communicated his intent to file a claim for disability benefits. 3. In April 2020, the Veteran submitted a VA Form 21-8940, seeking a total disability rating based on individual unemployability (TDIU). 4. No document within one year prior to February 20, 2020 can be construed as a claim, inferred or otherwise, of entitlement to a TDIU. CONCLUSIONS OF LAW 1. There is no valid appeal of the issue of entitlement to a disability rating in excess of 20 percent for a right ankle disability, and the issue is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for an effective date prior to February 20, 2020 for the award of a TDIU have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1955 to October 1958. In October 2020, the Board issued a decision granted a 20 percent rating, but no higher, for the Veteran's service-connected right ankle disability. In November 2020, the RO issued a rating decision effectuating the Board's October 2020 grant of a 20 percent rating for the right ankle disability. In a separate November 2020 rating decision, the AOJ granted a total disability rating based on individual unemployability (TDIU) with an effective date of February 20, 2020. In October 2021, the Veteran submitted a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) as to the issues of an increased rating for a right ankle disability and an earlier effective date for the TDIU award. The Veteran selected the Direct Review lane without a Board hearing. Accordingly, the Board's current review is limited to the evidence at the time of the AOJ's November 2020 rating decisions. 1. Entitlement to a disability rating in excess of 20 percent for a right ankle disability A veteran may not challenge the merits of a Board decision by expressing disagreement with the rating decision implementing the Board's decision. See Harris v. Nicholson, 19 Vet. App. 345 (2005) (including the following citation by the Court "see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) ('an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal'). The United States Court of Appeals for the Federal Circuit has stated that 'it is improper for a lower tribunal (the RO) to review the decision of a higher tribunal (the Board []).'" As such, the Veteran cannot challenge the merits of the final October 2020 Board decision by appealing the AOJ's implementing rating decision. The attempted appeal of the November 2020 rating decision that implemented the October 2020 Board decision is therefore not valid and is barred as a matter of law. Accordingly, the claim of a disability rating in excess of 20 percent for a right ankle disability is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 10.1100. 2. Entitlement to an effective date prior to February 20, 2020 for the award of a total disability rating based on individual unemployability (TDIU) Under the general rule, the effective date of a rating increase is the date of receipt of the claim or the date entitlement to the increase arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F. R. § 3.400(o)(1). The general rule thus precludes an award of an effective date that is earlier than the date of application for the increased rating. Under an exception, however, the effective date of an increase will be the earliest date as of which it is factually ascertainable from all evidence of record that an increase in disability had occurred, provided that a complete claim or an 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); see Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). A factually ascertainable increase under this exception is an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). The disability must be shown to have increased during the one year immediately preceding the filing of the claim rather than only earlier. Gaston v. Shinseki, 605 F.3d 979, 980 (2010). For medical records (reports of examination, hospitalization, or medical treatment) to be considered, a complete claim or a statement of intent to file a claim must be received within one year from the date of the medical record. See 38 C.F. R. § 3.400(o)(2). The effective date of a grant of a TDIU is determined under the rules applying to increases unless the request for that rating was part of an initial claim for service connection; in that case, the effective date is the later of the date of the claim or the date entitlement to the benefit arose. See 38 C.F.R. § 3.400(b)(2). On February 20, 2020 the Veteran called VA to provide notice of his intent to file a claim for disability benefits. In April 2020, he submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, asserting that his service-connected disabilities preclude him from finding and maintaining substantially gainful employment. The Board's October 2020 final decision did not include a finding that the evidence of record raised the issue of entitlement to a TDIU per Rice, 22 Vet. App. at 454. In November 2020, the RO granted a TDIU with an effective date of February 20, 2020. (Continued on the next page) It was not factually ascertainable that the Veteran was asserting unemployability due to his service-connected disabilities within one year of his February 20, 2020 intent to file because there are no lay statements or medical evidence of record showing that the Veteran was unemployable due to his service-connected disabilities in the year prior to February 20, 2020. Therefore, an effective date prior to February 20, 2020 for the award of a TDIU is denied. See 38 U.S.C. § 5110; 38 C.F. R. § 3.400. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.