Citation Nr: 21026922 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-63 055 DATE: May 4, 2021 ORDER Entitlement to an effective date prior to September 11, 2012, for the award of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Neither an earlier claim for entitlement to a TDIU, nor evidence of a factually ascertainable increase in disability occurred so as to merit entitlement to a TDIU during the year preceding the August 2012 claim is contained in the record. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 11, 2012, for the award of entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1981 to April 1982 and from January 2003 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision. In an August 2018 decision, the Board denied this matter. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2020 Memorandum Decision, the Court partially vacated the Board's August 2018 decision, and remanded this matter to the Board for proceedings consistent with the Court's decision. Entitlement to an effective date prior to September 11, 2012, for the award of entitlement to a TDIU The Veteran contends that he is entitled to an earlier effective date for the grant of a TDIU, specifically dating back to June 2003. Evidence of record indicates that the Veteran is service-connected for the following disabilities: moderate recurrent major depressive disorder rated as 30 percent disabling from June 11, 2003, and 70 percent disabling from August 16, 2012; lumbar paravertebral myositis with straightening of the lumbar lordosis due to muscle spasm by x-ray rated as 40 percent disabling from June 11, 2003, and 60 percent disabling from August 16, 2012; post-traumatic headaches secondary to head trauma, muscle contraction and tensional type with migrainous component rated as 10 percent disabling from June 11, 2003, 30 percent disabling from August 16, 2012, and 50 percent disabling from June 18, 2015; mild toxic incipient cataracts associated with recurrent moderate major depressive disorder rated as noncompensable from April 14, 2005, and 30 percent disabling from June 18, 2015; clinical gastritis rated as 10 percent disabling from April 14, 2005; and status post undisplaced fractures of the lateral aspect of the 6th, 7th, and 8th ribs with a questionable fracture of the anterior lateral aspect of the right 9th rib rated as noncompensable from June 11, 2003. The Veteran's combined disability rating is 60 percent from June 11, 2003; 70 percent from April 14, 2005; 90 percent from August 16, 2012; and 100 percent from June 18, 2015. 38 C.F.R. §§ 4.25, 4.26. He meets the schedular criteria for a TDIU rating from April 14, 2005. 38 C.F.R. § 4.16(a). Awards of TDIU are governed by the effective date rules applicable to awards of increased compensation. See, e.g., Hurd v. West, 13 Vet. App. 449 (2000). The general rule is that the effective date of such an award shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2020). Date of receipt means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Therefore, three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Harper, 10 Vet. App. at 126. In determining an effective date for an award of a TDIU, VA must make two essential determinations. It must determine (1) when a claim for TDIU was received, and (2) when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU. 38 C.F.R. §§ 3.155, 3.400(o)(2). With respect to the first of these determinations (when a claim for TDIU was received), the Board notes that, once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c) (2015). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2015). However, an informal claim for TDIU need not be specifically labeled as such. Indeed, the United States Court of Appeals for the Federal Circuit has held that VA has a duty to determine all potential claims raised by the evidence, applying all relevant laws and regulations, and that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, VA must consider entitlement to TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. As the appeal period is prior to September 11, 2012, the former regulations apply. With regard to the second of the aforementioned determinations (when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU), the Board notes that TDIU may be awarded, where a veteran's schedular rating is less than total, if evidence is received to show that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. 38 C.F.R. § 4.16(b). Rather, "[i]t is the established policy of [VA] that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. Evidence of record simply does not provide a basis for the assignment of an effective date earlier than September 11, 2012, for entitlement to a TDIU rating. Neither an earlier claim for TDIU, nor evidence of a factually ascertainable increase in disability occurred so as to merit entitlement to a TDIU during the year preceding the August 2012 claim is contained in the record. In July 2003, the Veteran filed claims for service connection for several disabilities, asserting that he had a very critical medical condition and no income at all. In a July 2003 VA treatment record, the Veteran was noted to be on sick leave from his civilian job. In December 2003, he expanded his claim to include several additional conditions, including a psychiatric disorder. In a March 2004 statement, the Veteran again expanded his claim, asserting that he was unable to work since June 2003. VA treatment notes dated in May and July 2004 detailed that the Veteran had been performing mechanic work in his job as a supervisor since his return in April 2004. He reported that he could not be as productive at work as he was due to disability. In a December 2004 functional capacity evaluation, the examiner concluded that the Veteran qualified for the sedentary work category within the restricted workplace for an eight-hour day. In an October 2004 VA treatment record, the Veteran reported he did not feel motivated at work, was irritable with employees, and had episodes of hostile behavior. In a March 2005 VA examination report, the Veteran indicated that he was having problems in his job due to his depression and his medical conditions. In a March 2005 rating decision, the AOJ denied entitlement to a TDIU, finding that the Veteran was gainfully employed. The Veteran filed a notice of disagreement (NOD) in April 2005 for the TDIU claim. A June 2005 attendance report from his employer detailed the amounts of sick leave (34 days), vacation (15 days), and paid time off (21 days) taken from April 2004 to April 2005. In September 2005, the AOJ issued a statement of the case (SOC) continuing the denial of entitlement to a TDIU. The Veteran did not respond to the SOC or file an appeal for entitlement to a TDIU. In a November 2005 statement, the Veteran sought reevaluation of his service-connected spine and depressive disorder disabilities as well as secondary conditions for back, lower back, and bilateral legs. VA treatment records dated in November 2005 detailed that VA treatment providers gave him certification for three months leave without pay. In a February 2006 treatment record, it was noted that the Veteran as under evaluation and treatment for several medical conditions and also for a nervous disorder. The provider indicated that the Veteran was unable to return to work at the present time. In February 2006 VA examination reports, the Veteran indicated that he had not worked in the last four months. In an April 2006 rating decision, the AOJ continued the ratings for the Veteran's spine and depressive disorder disabilities and denied service connection for a bilateral leg condition. In a May 2006 statement, the Veteran filed a NOD with the April 2006 rating decision. In a May 2006 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that he had not worked since November 2005 due to his service-connected disabilities. VA occupational therapy treatment notes dated in July 2006 indicated that the Veteran was currently on work/medical leave (nine months ago) and that pain interfered with his productivity at work. A goal was set to return to work in 6-8 months. In a January 2007 rating decision, the AOJ denied entitlement to a TDIU. Based on his reported education level, the AOJ found that the Veteran was not considered unemployable in all areas of potential employment. In addition, the Veteran had reported that he had not tried to obtain employment since he became too disabled to work. In a March 2007 statement, a private physiatrist indicated that the Veteran was totally and permanently disabled to perform all types of gainful work duties. In April 2007, the Veteran filed an NOD for the TDIU claim. In September 2007, the AOJ issued a SOC continuing the denial of entitlement to a TDIU. The Veteran did not respond to the SOC or file an appeal for entitlement to a TDIU. In May 2009, the Veteran once again filed a claim for TDIU, indicating that he was unable to work due to his service-connected disabilities. In an August 2009 VA examination report, the Veteran indicated that he was unemployed but not retired. His mental disorder symptoms were noted to be controlled by continuous medication. VA treatment notes dated in December 2009 detailed that the Veteran was still employed but on leave and receiving SSA disability benefits. In a December 2009 rating decision, the AOJ denied entitlement to a TDIU. In February 2010, the Veteran filed an NOD for the TDIU claim. In December 2010, the AOJ issued a SOC continuing the denial of entitlement to a TDIU. The Veteran did not respond to the SOC or file an appeal for entitlement to a TDIU. The Veteran filed a claim for entitlement to TDIU in August 2012, asserting that he was precluded from any type of gainful employment. In an August 2012 VA Form 21-8940, the Veteran reported that he had not worked since 2008 as an operation supervisor due to the combination and severity of his service-connected disabilities. On VA examination in September 2012, the VA examiner opined that the Veteran's post-traumatic headaches were frequent and of a longer duration, requiring bed rest due to prostration; and therefore, he was rendered unemployable. In October 2012, the Veteran submitted a letter that detailed his work dismissal was effective from October 1, 2010. The AOJ denied the Veteran's TDIU claim in a February 2013 rating decision. The Veteran filed a timely NOD that same month and a SOC was issued affirming the denial in June 2015. A formal TDIU application was then received on June 18, 2015. The Veteran reported that he had last worked full-time in October 2010, after which his post-traumatic headaches and associated disabilities prevented him from working full-time. In a March 2016 rating decision, entitlement to TDIU was granted, effective from June 18, 2015. It was noted that a February 2016 VA examiner had found that the Veteran's service-connected posttraumatic headaches interfered with his ability to sustain any type of employment. The Veteran filed a timely NOD that same month seeking an earlier effective date for the award of entitlement to TDIU. A SOC was issued affirming the denial in August 2017 and the Veteran filed a formal appeal in September 2017. In a December 2018 decision, the Board found it probative that the September 2012 VA examiner previously concluded that the current severity of the Veteran's post-traumatic headaches precluded him from securing or following a substantially gainful occupation. Years later, in February 2016, the VA examiner reaffirmed the prior conclusion the Veteran was unemployable due to his post-traumatic headaches and reached a similar finding as to his service-connected recurrent moderate major depressive disorder. Affording the Veteran the benefit of the doubt, the Board found that an earlier effective date of September 11, 2012, but no earlier, was warranted for the award of entitlement to a TDIU. In the February 2020 Memorandum Decision, the Court concluded that the Board provided inadequate reasons or bases for denying an effective date earlier than September 11, 2012, for TDIU. It was noted that the August 2018 Board decision reflected a lack of fact finding as to why the Veteran was not entitled to an effective date of benefits prior to that date. At a bare minimum, the Board was instructed to consider whether the Veteran was entitled to TDIU one year before the date of his formal application in August 2012 and to consider any other relevant regulations in making its determination of the appropriate effective date. As an initial matter, in order to assign an earlier effective date, there must be a claim implicating TDIU that has not yet been finally adjudicated. Here, the Veteran has claimed entitlement to TDIU several times prior to September 11, 2012. However, all of the claims that raised TDIU prior to that date including claims in March 2004, May 2006, May 2009, and August 2012 are subject to final decisions in March 2005, January 2007, December 2009, and February 2013 by virtue of Veteran's failure to respond to SOCs dated in September 2005, September 2007, December 2010, and June 2015. The Veteran and his attorney have argued that the November 2005 statement should qualify as response to the September 2005 SOC and as a perfected appeal for the March 2005 rating decision that denied entitlement to TDIU. In the alternative, they assert that it constitutes a new unadjudicated claim for TDIU. However, nothing suggests that Veteran was attempting to perfect an appeal for entitlement to TDIU or file a claim for entitlement to TDIU with his November 2005 statement. He did not object to any part of the September 2005 SOC, did not indicate a desire for appellate review or refer to any pending appeal, and did not in any way discuss unemployability. Instead, he sought re-evaluation of his service-connected spine and depressive disorder disabilities as well as secondary conditions for back, lower back, and bilateral legs. The Board is unable to see any merit in the argument by the Veteran's attorney that claiming entitlement to an increased rating for depressive disorder should be construed as a claim for TDIU as well. The AOJ sent the Veteran a January 2006 letter explaining that it had construed his November 2005 statement as a claim for increased evaluations for his service-connected spine and psychiatric disabilities and as an original claim relating to his legs, saying nothing about TDIU. The Veteran did not object to the AOJ's interpretation of the statement or it's actions in any way. Thereafter, he filed a formal application for TDIU in May 2006. Even considering the November 2005 statement as a TDIU claim, entitlement to TDIU was then denied in a now final January 2007 rating decision. There is also no evidence that a factually ascertainable increase in disability occurred so as to merit entitlement to a TDIU during the year preceding his August 2012 claim. VA treatment records dated in the year prior to August 2012 detailed that the Veteran was retired and receiving SSA disability benefits. He was noted to be able of do activities of daily living (including taking care of personal hygiene) and household duties. He reported that he liked making crafts, doing volunteer work, and watching television. He received treatment for his service-connected disabilities, including group mental health treatment as well as physical therapy. Based on the foregoing discussion, the assignment of an effective date earlier than September 11, 2012, for the award of entitlement to a TDIU is not warranted. As the Board finds that the preponderance of the evidence is against the Veteran's earlier effective date claim, the benefit of the doubt doctrine does not apply. See Schoolman v. West, 12 Vet. App. 307, 311 (1999). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.