Citation Nr: 21005873 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-25 315 DATE: February 2, 2021 ORDER An effective date earlier than February 17, 2010 for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. In August 2004, the Veteran submitted an initial claim for a TDIU. 2. In a January 2005 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied a TDIU. This decision was continued in a June 2006 rating decision. The Veteran did not appeal either decision and the decisions became final. 3. The Veteran stopped working full-time due, at least in part, to his service-connected disabilities in November 2007. 3. On February 17, 2010, the Veteran filed a request to reopen the claim for a TDIU. 4. No informal claims for a TDIU were filed between June 2006 and February 17, 2010. CONCLUSIONS OF LAW 1. The January 2005 and June 2006 ratings decisions in which the RO denied a TDIU are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria for an effective date earlier than February 17, 2010 for the award of a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5101, 5109A, 5110, 5111; 38 C.F.R. §§ 3.105, 3.400(o)(2), 3.151, 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to June 1970. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which denied a TDIU. The Veteran disagreed with this decision and perfected this appeal. In a December 2016 decision, the Board granted a TDIU beginning September 8, 2011, which corresponds to the date his service-connected disabilities met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). This award was effectuated by rating decision dated in February 2017. As for the period prior to September 8, 2011, in December 2016, the Board remanded this issue for a vocational assessment to be completed to assess the impact of the Veteran’s service-connected disabilities on his ability to maintain gainful employment for the period from February 7, 2009 to September 7, 2011 and for his claim to be submitted to the Director, Compensation and Pension Service, for extraschedular consideration per 38 C.F.R. §§ 4.16(b). Such was accomplished in October 2020 and, by rating decision dated in October 2020, the RO granted an extraschedular TDIU effective February 17, 2010, the date of the Veteran’s claim for a TDIU. The RO also denied an earlier effective date prior to February 17, 2010 and returned the case to the Board. An effective date earlier than February 17, 2010 for the assignment of a TDIU, to include on an extraschedular basis, is denied. By way of history, the Veteran submitted an initial claim for a TDIU in August 2004 and, by rating decision dated in January 2005, the RO denied a TDIU as an October 2004 VA examination report showed that the Veteran was currently employed in housekeeping by VA. The Veteran submitted a second claim for a TDIU in June 2005 and, by rating decision dated in June 2006, the RO again denied a TDIU. At that time, it was noted that, while the Veteran experienced chronic discomfort in his lower abdomen due to his service-connected peptic ulcer disease, he was still employed in housekeeping by VA. The Veteran did not appeal either of these decisions and they became final. The Veteran submitted the current claim for a TDIU on February 17, 2010. At that time, the Veteran wrote that that he had worked in housekeeping at a VA Medical Center (VAMC) from February 1988 to November 30, 2007 but had to stop working due to his service-connected posttraumatic stress disorder (PTSD) and peptic ulcer disease. A VA 21-4192 Request for Employment Information in Connection with Claim for Disability completed by his employer in June 2010 confirms that he worked from February 1988 to November 30, 2007 as a housekeeping aid and he stopped working due to voluntary retirement. As above, the Veteran is currently in receipt of a TDIU effective February 17, 2010, the date the current claim was filed. The Veteran seeks an effective of November 30, 2007 for the assignment of a TDIU, the date he last worked full-time. Generally, the effective date for an award of disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Pertinent to claims for an increase, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred (date entitlement arose). 38 C.F.R. § 3.400(o)(1). If an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred (factually ascertainable). 38 C.F.R. § 3.400(o)(2). If an increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received (date of claim). 38 C.F.R. § 3.400(o)(2). Upon review of the above evidence, the Board finds that an effective date prior to February 17, 2010 for the assignment of a TDIU is not warranted. Because the Veteran did not appeal the January 2005 or June 2006 rating decisions, nor did he submit new and material evidence within one year of these decisions, they became final. See 38 U.S.C. § 7104. Based on the law cited above, the appropriate effective date of reopened claims shall be the date of receipt of claim to reopen or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Here, the RO received the Veteran’s request to reopen his claim for a TDIU on February 17, 2010. There is no evidence that he filed a claim to reopen prior to that date. A review of the claims file is also negative for evidence of unemployability received in the year prior to his February 2010 claim such that 38 C.F.R. § 3.400(o)(2) could be applicable. Significantly, there are no documents in the claims file received within one year of the February 2010 claim. While it appears that the Veteran’s service-connected disabilities did, in fact, render him unemployable as early as November 30, 2007 due to angry outbursts, disputes on the job, and absenteeism as a result of PTSD and gastritis, the Veteran does not allege and the evidence does not show he became too disabled to work in the year prior to his claim. See June 2020 Medical Opinion. Furthermore, given the finality of the January 2005 and June 2006 rating decisions, the assignment of an effective date prior to February 17, 2010 for the assignment of a TDIU is prohibited by law unless there is a showing of clear and unmistakable error (CUE) in a previous decision. Where evidence establishes such error, the prior decision will be reversed or amended. See 38 U.S.C. § 5109A; Cook v. Principi, 318 F.3d 1334 (Fed.Cir.2002) (en banc). In this case, the Veteran has not submitted a claim regarding CUE in either the January 2005 or June 2006 rating decisions. Thus, there is no entitlement to an effective date earlier than February 17, 2010 on the basis of CUE in a prior rating decision. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.