Citation Nr: 21029974 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-02 426 DATE: May 17, 2021 ORDER Entitlement to an effective date of November 4, 2011, but no earlier, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT 1. The Veteran's VA Form 21-526, Application for Compensation and/or Pension, was received on November 4, 2011, in which the Veteran claimed service connection for multiple disorders is reasonably construed as a claim for a TDIU rating. 2. As of November 4, 2011, the Veteran met the schedular criteria for a TDIU rating and at that time his service-connected disorders precluded obtaining and retaining substantially gainful employment. 3. The most probative evidence does not show that the Veteran filed a claim (formal or informal) seeking a TDIU prior to November 4, 2011. CONCLUSION OF LAW The criteria for an effective date of November 4, 2011, but no earlier, for a TDIU rating have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's service department records show that he had active duty from January 1981 to April 1988; from December 2005 to November 2006, from April to September 2007, and other information of record indicates he had active duty from December 2007 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In November 2018, the Board denied an effective date earlier than September 28, 2015, for a TDIU rating. The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court) which, in a November 2020 memorandum decision, the Court vacated and remanded the case to the Board. Background VA Form 21-526, Application for Compensation and/or Pension, was received on November 4, 2011, in which the Veteran claimed compensation for disorders of the cervical and lumbar spinal segments, right foot fracture residuals, traumatic brain injury (TBI) with vertigo, tension headaches, sleep apnea, bilateral hearing loss, tinnitus, disability of each knee and each shoulder, as well as for an anxiety disorder. With respect to monthly income he reported not having any income from any source and not having any assets. VA Form 21-4138, Statement in Support of Claim, was received on August 22, 2012, in which the Veteran reported that his financial situation was getting worse and asked that his claims be expedited. A November 2, 2013 rating decision granted service connection for: sleep apnea, which was rated 50 percent disabling; cervical spondylosis and discogenic disease with disc protrusion at C6-7, rated 20 percent; lumbar spondylosis, discogenic disease and paravertebral myositis, rated 20 percent; status post (SP) left shoulder arthroscopic surgery for impingement syndrome residuals, rated 10 percent; healed right cuboid bone (foot) fracture, rated 20 percent; and status post left shoulder surgery scars, rated noncompensably disabling. All of these grants were made effective date of receipt of the original claim on November 4, 2011. Service connection was denied for other disorders. The Rating Code sheet for that rating decision states "VSR send the veteran VA Form 21-8940 since the veteran met the schedular requirement for IU." The Veteran was notified of the November 2, 2013 rating decision by RO letter of November 4, 2013, which also informed him that he might be eligible for service connected disability benefits at the 100% rate if he was too disabled to work because of his service connected disabilities. If he believed so, he was to complete and return the enclosed VA Form 21-8940, "Veteran Application For Increased Compensation Based On Unemployability." A July 16, 2014 rating decision denied service connection for traumatic brain injury (TBI) with posttraumatic headaches, claimed as TBI vertigo. The Rating Code sheet states: A provisional decision was made November 2, 2013 as per VBA Letter 20-13-07. On the Rating Decision Notification letter dated November 4, 2013 we informed the veteran that "You may be eligible for service connected disability benefits at the 100% rate if you are too disabled to work because of your service connected disabilities. If you believe that you qualify, please complete and return the enclosed VA Form 21-8940, "Veteran Application for Increased Compensation Based on Unemployability." As of today, we have not received the above mentioned VA Form 21-8940. VA Form 21-4138, Statement in Support of Claim, was received on September 28, 2015, in which the Veteran stated that "[s]ince I meet all legal requirements for IU under C.F.R. 4.16, please grant IU effective 11-4-[20]11 date of grant of SC 70%, I. U. decision not adjudicated by clear & unmistakable error." By RO letter of October 29, 2015, the Veteran was informed that his correspondence had been received indicating that he desired to file a claim for benefits but that "VA regulations now require all claims to be submitted on a standardized form." VA Form 21-8940, Application for Increased Compensation Based on Unemployability, was received on November 23, 2015 in which the Veteran listed his service-connected disorders as preventing him from securing or following any substantially gainful occupation. He reported that he had last worked full-time and had become too disabled to work in September 2008 when on active duty in the reserves. He had left his last employment due to service-connected disabilities but had had no income in the past 12 months. He reported that a claim with the Social Security Administration (SSA) was "in process." He had for years of college education. Records of the SSA, include a December 2015 Notice of Award, showing that the Veteran was awarded SSA disability benefits beginning in March 2015. In part, a March 31, 2016 rating decision granted a TDIU rating and basic eligibility to Dependents' Educational Assistance (DEA), both effective from November 23, 2015. In the Veteran's VA Form 21-0958, Notice of Disagreement (NOD) as to the effective date of November 23, 2015 by the March 31, 2016 rating decision, he requested participation in the Decision Review Officer (DRO) Process. A December 8, 2016, rating decision by the DRO granted an earlier effective date for the TDIU rating and basic eligibility to DEA, both as of September 28, 2015, date of receipt of VA Form 21-4138, Statement in Support of Claim. The DRO decision stated the earlier effective date was assigned "because the evidence shows that [the Veteran] filed an informal claim for this benefit on September 28, 2015 and formalized the same within one year. [by filing VA Form 21-8940] Therefore, entitlement to individual unemployability has been granted in [sic] the date of receipt of the claim." 1. Entitlement to an earlier effective date of November 4, 2011 to a TDIU rating The Veteran contends that he should be entitled to an effective date of November 4, 2011, the date of receipt of his initial claim, VA Form 21-526, which is also the effective date for his service-connected disability ratings, and when he first met the minimum statutory requirements for an award of a TDIU. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The November 2018 Board decision observed that during the course of the Veteran's original claim, VA recognized both formal and informal claims, although those pertinent regulations have more recently been rescinded, requiring the filing of formal claims after March 24, 2015. Prior to March 2015, an informal or formal claim contains the following requirements: "(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); see also 38 C.F.R. §§ 3.155(b) (2017) (explaining how to file a claim), 3.1(p) (2015) (defining "claim" as a "formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit"). In November 2018 the Board also observed that while the Veteran met the minimum TDIU rating criteria requirements effective November 4, 2011, no intent to file a claim for TDIU benefits was made until September 28, 2015,and that the August 2012 statement by the Veteran that he had no income was in support of a request to expedite his service connection claims. The Board also noted that the Veteran had not appealed the November 2013 rating decision which granted service connection for multiple disorders and assigned ratings such that the Veteran met the schedular TDIU criteria under 38 C.F.R. § 4.16(a). As to this, the Veteran has argued that under 38 C.F.R. § 3.105(a) there was clear and unmistakable error in that rating decision in not adjudicating a TDIU claim. See VA Form 21-4138, Statement in Support of Claim, of September 2015. However, if there was a valid claim for a TDIU rating, and because it was not adjudicated in the November 2013 rating decision, that decision is not final as to any TDIU claim and, so, there can be no clear and unmistakable error therein. Rather, when VA fails to adjudicate a claim, the claim remains pending. See Fenderson v. West, 12 Vet. App. 119, 132 (1999); Holland (Sterling) v. Gober, 10 Vet. App. 433, 436 (1997) (per curiam order). Therefore, there is no final adverse RO decision that can be subject to a CUE [clear and unmistakable error which requires reversal of a VA adjudication] attack. Norris v. West, 12 Vet. App. 413, 422 (1999) (citing Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997)). The November 2018 Board decision was overturned by the Court because of a misstatement of law. Specifically, and citing Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board stated that a TDIU claim will only be inferred as part and parcel of a claim for an increase in disability rating, not as part of a claim for service connection. However, the Court stated that "[a]n initial claim for service connection can include a TDIU claim" because, citing Rice, 22 Vet. App. at 453, "an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on that disability (either overtly stated or implied by a fair reading of the claim or of the evidence of record).')" The factual background was extensively set forth in the Court's memorandum decision, noting that "[i]n November 2011, he [the Veteran] filed a claim for service connection for several conditions [and] (he also noted that he and his spouse did not receive monthly benefits from, e.g., Social Security or military retirement pay)." Also, it was noted that in August 2012 the Veteran informed VA that he had no income; in November 2011 he reported he did not have any assets; and in March 2012 he stated that issues with medical evaluations for his service-connected back conditions had precluded continued participation in the Reserves. The Court did observe that being unemployed was not synonymous with being unemployable but that given the Veteran's circumstances it was incumbent on the Board to discuss whether the Veteran's repeated indications that he did not have any income and that his financial situation was getting worse constituted a reasonably raised TDIU claim. Significant factors in this case are the Veteran's continued statements of his financial status, from which it could be reasonably construed that he could not work, as well as the continued efforts to obtain VA Form 21-8940 from the Veteran, and his subsequently service-connected back disorders precluding continued participation in the Reserves. From this, the Board finds that favorably resolving doubt, as required by 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102, in light of this factual background the Veteran's November 4, 2011 VA Form 21-526 initial claims for service connection, when reasonably construed, constituted a claim for a TDIU rating. Thus, because he met the schedular criteria for a TDIU as of November 4, 2011, and because the evidence otherwise shows that he was unable to obtain or retain substantially gainful employment as of that date, the proper effective date for a TDIU rating is November 4, 2011 the date of receipt of his VA Form 21-526, Application for Compensation and/or Pension. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.