Citation Nr: A21020663 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 211130-201439 DATE: December 30, 2021 ORDER An earlier effective date of February 9, 2017 for the grant of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. February 9, 2017 was the date a claim for a total disability rating based on individual unemployability was raised. 2. The Veteran was unemployable due to service-connected disabilities prior to February 9, 2017. CONCLUSION OF LAW The criteria have been met for an earlier effective date of February 9, 2017 for the grant of a total disability rating based on individual unemployability (TDIU). 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400; see Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to January 1965, March 1965 to March 1971, and June 1977 to February 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). 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. In the November 2021 VA Form 10182, the Veteran appealed the effective date for TDIU and increased ratings for bilateral hip disabilities. The Veteran noted the December 2020 decision. The Veteran was notified of the November 2020 rating decision in December 2020. However, the November 2020 decision does not address increased ratings for his bilateral hip disability. The decision only addresses restoration of a rating and entitlement to TDIU with a new effective date. Notably, the November 2020 rating decision was issued to implement the November 2020 Board decision. Therefore, if the Veteran disagreed with denials in the November 2020 Board decision the appropriate recourse was an appeal to the United States Court of Appeals for Veterans Claims (Court). An appeal requires a notice of disagreement to an issue or issues for which VA provided notice of a decision. See 38 C.F.R. § 20.4 (a)(1). There was no decision rendered on increased ratings for the bilateral hip disability in the November 2020 rating decision. Therefore, there is no valid appeal before the Board for increased ratings of the bilateral hip disabilities and the Board has no jurisdiction (power) over those issue. If the Veteran is not satisfied with the current ratings for bilateral hip disabilities, the Veteran may file a new claim for increased ratings. Duties to Notify an Assist Neither the Veteran nor his attorney 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). Earlier Effective Date Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose (that means, the date the substantive criteria for the benefit were met), whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Before March 24, 2015, a claim was defined as a formal or informal communication in writing asking for a decision about whether a veteran or appellant is qualified for VA benefits (or demonstrating a belief that a Veteran or appellant is qualified for VA benefits). 38 C.F.R. § 3.1(p). The essential elements for any claim, formal or informal, are: (1) intent to apply for benefits; (2) identification of the desired benefits; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Starting on March 24, 2015, a claim must be filed on a designated VA form or it is not considered a claim (that is, the idea of an "informal claim" is no longer valid). See 38 C.F.R. § 3.1(p); 79 Fed. Reg. 57,696 (Sept. 25, 2014). Factual Background The Veteran filed a February 9, 2017 claim for an increased rating for his right hip disability on the prescribed form. The Veteran filed a July 2017 application for TDIU. In the July 2017 application the Veteran listed his right hip disability as one of the disabilities preventing him from securing or following a substantial gainful occupation. A September 2017 rating decision denied entitlement to TDIU. Analysis First, the date of claim is February 9, 2017. The Veteran filed a claim for an increased rating for his right hip disability and a few months later for TDIU. As noted in the November 2020 Board decision, TDIU was raised by the record and is part and parcel of the increased rating claim for the right hip. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). Second, the prior May 2015 rating decision denying TDIU became final because the Veteran was notified about the denial in May 2015 and did not appeal or submit new and material evidence within one year. Notably, the evidence in the file from May 2015 to May 2016 does not indicate the Veteran was unable to follow or maintain a substantially gainful occupation due to his service-connected disabilities during that time. Therefore, the May 2015 rating decision was final. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). Lastly, entitlement arose prior to February 9, 2017. Regarding the date of entitlement, the phrase "date entitlement arose" is the date when the claimant met the requirements for the benefits sought, on a facts-found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). This does not mean the date that VA receives the evidence but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. The Veteran has met the disability percentage criteria for TDIU on a schedular basis since November 2011 and the Veteran has not worked since March 2008. The November 2020 Board decision relied on the June 2020 vocational assessment, which addresses evidence indicating the Veteran was unable to obtain or maintain substantially gainful employment due to service-connected disabilities prior to the February 2017 claim. Therefore, the effective date of the Veteran's TDIU rating should be the later of: (1) the date the Veteran became unemployable due to service-connected disabilities, which was before February 9, 2017; and (2) the date a claim for a total disability rating based on individual unemployability was raised, which was on February 9, 2017. Accordingly, an earlier effective date of February 9, 2017 is warranted for the Veteran's TDIU rating. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.