Citation Nr: A21020097 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 211101-194879 DATE: December 16, 2021 ORDER Entitlement to an effective date before June 15, 2021 for total disability rating based on individual unemployability (TDIU), based on PTSD alone, is denied. FINDINGS OF FACT 1. The Veteran's claim for a TDIU based on his posttraumatic stress disorder (PTSD) alone was received on June 15, 2021. 2. No communication before June 15, 2021 indicated an intent to file a claim for a TDIU based on PTSD alone. 3. The evidence does not show an increase in PTSD symptoms that prevented the Veteran from securing or following a substantially gainful occupation between June 15, 2020 and June 14, 2021. CONCLUSION OF LAW The criteria for entitlement to an effective date before June 15, 2021 for a TDIU based on PTSD alone have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from June 1963 to June 1967. The rating decision on appeal was issued in September 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to an effective date before June 15, 2021 for TDIU The Veteran is seeking an effective date before June 15, 2021 for his TDIU based on PTSD alone. The Veteran specifically requested an effective date in 2004. The Board notes that the Veteran filed a claim for a TDIU in February 2004 and he has continued to pursue his claim for a TDIU consistently since that filing. Since February 2004, the Veteran has been granted service connection for PTSD, bilateral hearing loss, and tinnitus. He has several more claims for service connection in various stages of appeal. His original claim for a TDIU, which did not specify any particular disability as being solely responsible for his unemployability, remains active in VA's legacy appeals system and is not currently eligible for transfer to the AMA system. This decision will only address the specific claim raised on the VA form 21-8940 filed June 15, 2021, as amended June 28, 2021, for a TDIU based solely on PTSD. Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities alone shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is rated at 40 percent or more and remaining service-connected disabilities result in a combined rating of 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In cases where a Veteran is unemployable by reason of service-connected disabilities alone but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director, Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Because a TDIU is a form of increased rating, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability has occurred within one year from the date of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. The current effective date of the Veteran's TDIU is June 15, 2021, the date of the postmark on his first VA form 21-8940. In November 2020 and in May 2021, the Veteran had also filed claims for a TDIU. However, the November 2020 claim was included on a VA form 21-526EZ with claims for service connection for headaches, tremors, gall bladder removal, head surgery, a fatty tumor, sleep apnea, hypertension, erectile dysfunction, prostate cancer, and a bilateral lung condition, and in this context, it is most properly understood as a claim that one or more of these conditions caused the Veteran's unemployability. Likewise, the May 2021 claim was included on a VA form 21-526EZ with claims for service connection for sleep apnea, hypertension, seizures, and prostate cancer. There was no other communication which could reasonably be interpreted as a claim for a TDIU based on PTSD alone. Therefore, June 15, 2021 is the proper date of claim. In May 2020, the RO increased the Veteran's PTSD rating from 30 percent disabling to 70 percent disabling effective March 2, 2020. The increase was based on symptoms including forgetting names, forgetting directions, suspiciousness, depressed mood, disturbances of motivation and mood, retention of only highly learned material, mild memory loss, forgetting recent events, chronic sleep impairment, forgetting to complete tasks, obsessional rituals which interfere with routine activities, impaired abstract thinking, weekly panic attacks, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, difficulty in adapting to work or a worklike setting, impairment of short- and long-term memory, flattened affect, anxiety, and difficulty in establishing and maintaining effective work and social relationships, all causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. There is no indication in the record that from June 15, 2020 to June 14, 2021, the Veteran's PTSD worsened or caused the Veteran's unemployability beyond the level noted on the May 2020 rating decision. Applying the criteria of 38 C.F.R. § 3.400(o), June 15, 2021 is the proper effective date for the Veteran's TDIU based on PTSD alone, and his claim for an earlier effective date must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.