Citation Nr: A21020221 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210615-166367 DATE: December 17, 2021 ORDER Entitlement to an effective date of August 26, 2011, for the award of a total disability rating based on individual unemployability (TDIU), is granted. Entitlement to an effective date of August 26, 2011, for the award of eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35, is granted. FINDINGS OF FACT 1. A VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) was received by the RO on August 24, 2007; the Veteran asserted that he was too disabled to work due to his service-connected PTSD and a nonservice-connected back disorder. 2. Another VA Form 21-8940 was received by the RO on February 16, 2017; the Veteran reported that he became too disabled to work due to his service-connected PTSD on August 26, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 26, 2011, but no earlier, for a grant of entitlement to TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16 (2020). 2. The criteria for an effective date of August 26, 2011, but no earlier, for the grant of eligibility for DEA benefits have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to July 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2020 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies. In a February 2019 rating decision, the Veteran was awarded entitlement to TDIU and eligibility for DEA benefits, effective May 24, 2016. In February 2020, the Veteran submitted a VA Form 20-0996 (Request for Higher Level Review), wherein the Veteran indicated that he disagreed with the effective dates assigned for the grant of entitlement to TDIU and DEA benefits. A June 2020 Higher Level Review decision found that the Veteran was not entitled to earlier effective dates for his award of TDIU or DEA benefits. The Veteran timely appealed this decision to the Board in a June 2021 notice of disagreement (VA Form 10182) and requested direct review by the Board; the Veteran indicated that he continued to disagree with the effective dates of the awards of TDIU and DEA benefits. Under its review, the Board will now only consider all evidence of record at the time of the AOJ decision on appeal issued on June 16, 2020, as that is the most recent rating decision as to the issues of entitlement to earlier effective dates for TDIU and DEA benefits. 38 C.F.R. § 20.301. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date 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 increased, 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 the application therefor. 38 U.S.C. § 5110(a). In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of claim. After March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, a claim was 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). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 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); 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 intent to file a claim for VA benefits). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In arguing for the assignment of earlier effective dates for the awards of TDIU and DEA benefits, the Veteran argues that his awards of benefits should be retroactive. The Veteran, through his representative, requested an effective date of his original claim for TDIU, August 24, 2007 (the date of the award of a 70 percent disability evaluation for his service-connected PTSD), or in the alternative, an effective date of August 26, 2011, the date that the Veteran reported as the date that he became too disabled to work due to his service-connected PTSD. 3. Entitlement to an effective date prior to May 24, 2016 for the grant of TDIU. 4. Entitlement to an effective date prior to May 24, 2016 for the grant of eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. As previously noted, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In this case, the Veteran filed a claim of entitlement to TDIU, which was received by the RO on August 24, 2007. The Board acknowledges that the Veteran's claim has been continuously prosecuted since that date and does not dispute any assertions by the Veteran that the RO received his claim for TDIU on August 24, 2007. The Board also acknowledges that the Veteran, in a June 2018 Board decision, was awarded a 70 percent disability evaluation for his service-connected PTSD, effective August 24, 2007; this award of benefits was effectuated by a November 2018 rating decision. The Board likewise concedes that the Veteran met the schedular requirements for TDIU on August 24, 2007. See 38 C.F.R.§ 4.16(a)(1) (2020). However, the Veteran was not entitled to TDIU on August 24, 2007. As was conceded by the Veteran and his representative, the Veteran continued to work after filing his claim for TDIU in August 2007. Moreover, in his August 2007 claim for TDIU, the Veteran asserted that he was entitled to TDIU due to his service-connected PTSD and a nonservice-connected back disorder. The Board notes that the evidence of record is conflicting as to nature of the Veteran's employment following his initial claim for TDIU, and it cannot be determined if the Veteran was employed in a substantially gainful occupation following his claim for TDIU in August 2007. Nevertheless, the Board observes that the Veteran's treatment records indicate that he closed his business in 2010. Likewise, the Veteran reported on a February 2017 VA Form 21-8940 that he became too disabled to work due to his service-connected PTSD, standing alone, on August 26, 2011; he also reported that he last worked full time in December 2010. Although VA treatment records indicate that the Veteran reported in September 2012 that he worked because he needed income, the Board observes that the evidence of record does not demonstrate that the Veteran was engaged in substantially gainful employment in 2012. In this regard, the Board observes that a December 2011 statement from the Veteran's treating psychiatrist at the VA indicated that the Veteran was unable to function in a social or work environment due his persistent PTSD symptoms, and thus, could not sustain gainful employment as a result of his PTSD. The effective date for TDIU is either the date entitlement arose or the date of receipt of claim, whichever is later. The Board acknowledges that Veteran was awarded a 70 percent disability evaluation for his PTSD, effective August 24, 2007, contemporaneous to his claim for TDIU; this is the date of claim, and the date entitlement arose on a schedular basis. However, as discussed in VAOPGCPREC 75-91 and 38 C.F.R. § 4.16(b), the criteria for entitlement to TDIU also includes a subjective standard, in that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. Because the Veteran still worked full-time at the time of his August 24, 2007 claim for TDIU, and because he claimed entitlement to TDIU on the basis of his service-connected PTSD and a nonservice-connected back disorder, he cannot be said to have been entitled to TDIU due to his service-connected PTSD, standing alone, as of that date. To this point, the Board observes that the Veteran, through his representative, agrees that the Veteran was not yet entitled to TDIU as of the date of his initial claim, August 24, 2007 (see the June 2021 attachment to the VA Form 10182, submitted by the Veteran's representative). Nonetheless, as previously discussed, the Veteran reported that he last worked full-time in December 2010, and that he became too disabled to work due to his service-connected PTSD, standing alone, on August 26, 2011. As such, the date that the Veteran became entitled to TDIU is August 26, 2011. The medical evidence demonstrates that August 26, 2011 is when the Veteran, without regard to advancing age and nonservice-connected disabilities, was incapable of performing the physical and mental actions required by employment. In short, the Board does not dispute that the Veteran's claim for TDIU was received by VA on August 24, 2007. However, the evidence does not demonstrate that the Veteran's service-connected PTSD, standing alone, rendered him unable to obtain or retain substantially gainful employment prior to August 26, 2011. Therefore, as the date entitlement arose is after the date of receipt of claim, under the laws and regulations pertaining to effective dates, August 26, 2011 is the appropriate effective date for the grant of entitlement to TDIU in this case. Regarding the Veteran's claim to an effective date prior to May 24, 2016 for the grant of eligibility for DEA benefits, the Board points out that DEA benefits under the provisions of 38 U.S.C. Chapter 35 are available, in certain circumstances, when a Veteran has a total disability, permanent in nature, resulting from a service-connected disability. 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. In the instant case, the Veteran is not rated 100 percent for a single disability; instead, the Veteran has been granted a TDIU on the basis of his service-connected PTSD. As discussed herein, the appropriate effective date for the grant of TDIU is August 26, 2011. As the effective date for the award of eligibility for DEA benefits is directly related to a finding that the Veteran is totally disabled due to service-connected disabilities, the appropriate effective date for the grant of entitlement to DEA benefits is August 26, 2011. Under the laws and regulations pertaining to effective dates, entitlement to an effective date of August 26, 2011 for the grants of entitlement to TDIU and eligibility for DEA benefits, but no earlier, is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.