Citation Nr: 21022503 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-06 782 DATE: April 16, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 28, 2004 is denied. REMANDED Entitlement to a TDIU between July 28, 2004 and September 15, 2004 is remanded. FINDING OF FACT There is no claim or communication prior to July 28, 2004 that may be considered a formal or informal claim for a TDIU. CONCLUSION OF LAW The criteria for an effective date prior to prior to July 28, 2004 for the award of a TDIU have not been met. 38 U.S.C. § 5101, 5107; 38 C.F.R. §§ 3.151, 3.153, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1970. He died in June 2006, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared for a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the proceeding is of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Effective Date for a TDIU prior to July 28, 2004 A May 2018 rating decision granted TDIU, effective September 15, 2004, the date the Veteran met the schedular requirements. The Appellant now contends the proper effective date is April 26, 2000, the date the Veteran filed for medical retirement with the Office of Personnel Management (OPM); the Appellant contends VA was on constructive notice of the Veteran’s application to OPM under 38 C.F.R. § 3.153. In the alternative, the Appellant contends the VA was on actual notice of the OPM application as she attempted to submit the OPM application to the VA on two prior occasions, but the application was lost each time. The Appellant did not specify precisely when these attempts were made. See March 2021 Board hearing testimony. The effective date of an evaluation and an award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written, and it must identify the benefit being sought. Although a claimant need not identify the benefit sought “with specificity,” some intent on the part of the veteran to seek benefits must be demonstrated. VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” and extends to giving a sympathetic reading to all pro se pleadings of record. Additionally, 38 C.F.R. § 3.153 states, in part: “An application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration.” Here, the Appellant argues that an application to OPM is analogous to an application for Social Security Administration benefits under § 3.153, as both SSA and OPM are federal agencies. However, the regulation is explicitly limited to claims for VA death benefits. Further, the application must have been made to SSA, not any federal agency as the Appellant argues. Where, as here, the Appellant is not seeking death benefits, and the application at issue was not submitted to SSA, the provisions of § 3.153 cannot apply. Additionally, though the Appellant testified at the March 2021 Board hearing that she previously attempted to submit the OPM application to VA, a review of the file reveals no communication or action indicating an intent to apply for a TDIU was received from the Veteran or Appellant between January 1997 and July 28, 2004. 38 C.F.R. §§ 3.1(p), 3.155(a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Accordingly, under 38 C.F.R. §§ 3.153 and 3.400, the Veteran’s claim for an earlier effective date of April 26, 2000 is denied as a matter of law. REASONS FOR REMAND Entitlement to a total disability rating due to individual unemployability between July 28, 2004 and September 15, 2004 is remanded. Despite the Board’s findings above, the Board finds remand is required to address whether the Veteran is entitled to a TDIU on an extraschedular basis between July 28, 2004 and September 15, 2004. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Prior to his death in June 2006, the Veteran was service connected for diabetes and coronary artery disease. His combined rating was 40 percent from July 28, 2004 and 70 percent from September 15, 2004 to June 29, 2006. Accordingly, the Veteran did not meet the percentage standards set forth in § 4.16(a) prior to September 15, 2004. Thus, the Board may not consider the claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” 31 Vet. App. 58, 66 (2019). The Veteran applied for a TDIU on July 28, 2004 and submitted evidence that he was unemployable due to his service-connected cardiac condition as of January 2000. See March 2021 Board hearing. The Veteran’s treating physician indicated that he became permanently and totally disabled due to his cardiac condition as of January 2000. See February 2000 Private Treatment Records. Though the Board is precluded as a matter of law from considering whether the Veteran is entitled to a TDIU prior to July 28, 2004, the date of his claim for a TDIU, the Board finds that referral is appropriate for consideration of whether the Veteran is entitled to a TDIU on an extraschedular basis for the period of July 28, 2004 to September 15, 2004.   The matters are REMANDED for the following action: The AOJ should refer the matter of the Veteran’s entitlement to a TDIU rating on an extraschedular basis for the period of July 28, 2004 to September 15, 2004 to the VA Director of Compensation and Pension for a determination on the matter. In connection with the referral, the AOJ should include a full statement outlining the Veteran’s service-connected disabilities, employment history, educational attainment and all other factors bearing on the issue. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, Associate 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.