Citation Nr: 21030562 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-42 612 DATE: May 19, 2021 ORDER Entitlement to an effective date of April 8, 2017 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an increased rating greater than 70 percent for posttraumatic stress disorder (PTSD), is dismissed. FINDINGS OF FACT 1. From April 8, 2017, the Veteran met the schedular criteria for a TDIU and was unemployable due to service-connected disability and there was a pending rating claim of which the issue of entitlement to a TDIU was part and parcel. 2. In April 2021 the Veteran, through his representative, notified VA in writing that he wished to withdraw his appeal with regard to his increased rating claim for PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 8, 2017 for the grant of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for withdrawal of an appeal of the denial of an increased rating claim for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to September 2003, May 2007 to May 2008, and October 2009 to November 2009. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to a TDIU effective August 10, 2018. In June 2019 the Veteran filed a notice of disagreement (NOD) and timely disagreed with the assigned effective date. In June 2019 the RO issued a statement of the case (SOC) and in August 2019 the Veteran filed a substantive appeal (via VA Form 9). This case also comes to the Board on appeal from a May 2017 rating decision which increased the Veteran's rating for PTSD from 50 to 70 percent effective April 8, 2017. In May 2018 the Veteran filed a NOD as to the assigned rating and in June 2018 the RO issued a SOC. In August 2018 the Veteran filed a substantive appeal (via VA Form 9). The two appeal streams have been merged and all issues on appeal are addressed herein. In April 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is not currently associated with the record. However, as the instant decision grants the benefit sought in full, there is no prejudice to the Veteran by proceeding without the hearing transcript. TDIU In the December 2018 rating decision, the RO granted entitlement to a TDIU, effective August 10, 2018, the date the Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Veteran contends he is entitled to a TDIU prior to August 10, 2018. In an August 2019 legal brief, the Veteran, through his attorney, noted that he met the schedular requirements for a TDIU when he was granted a higher evaluation of 70 percent for PTSD. From April 8, 2017, the Veteran is service connected for PTSD rated 70 percent disabling which meets the TDIU criteria in 38 C.F.R. § 4.16(a). The Veteran contends that the effective date for the TDIU rating should be April 8, 2017 because a claim for a TDIU was reasonably raised by the record as part of his claim for an increased rating for PTSD. For the following reasons, the Board agrees. The law regarding effective dates provides that, unless specifically stated otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A claim for a TDIU is a type of increased rating claim. See Dalton v. Nicholson, 21 Vet. App. 23, 3234 (2007). The effective date for the grant of an increased rating claim may be as early as one year prior to the date of claim if the increase occurred within that year. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2) ("[t]he effective date of an award of increased compensation 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"). Under Rice v. Shinseki, a claim for TDIU is considered to be part and parcel of an increased rating claim (to include an initial higher rating claim), and therefore when evidence is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU is raised and must be addressed. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In order for TDIU to be inferred as part and parcel of a pending claim, there must be a pending appeal from an assigned disability rating. Id. Here, the claim of entitlement to an increased rating for PTSD was ongoing when the Veteran submitted his formal application for TDIU in August 2018. Thus, the Veteran's claim for entitlement to a TDIU is not a free-standing claim because there was a pending increased rating appeal at the time the Veteran submitted his formal TDIU application. In addition, the Court held in Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) that when the issue of entitlement to a TDIU is raised as part and parcel of an increased rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal. Here, the issue of entitlement to a TDIU is part and parcel of a rating claim even though the formal TDIU claim was received August 10, 2018. On the Veteran's August 2018 VA Form 21-8940 he stated that he last worked in August 2016 at an oil field. He also worked doing marine research and plumbing. The Veteran stated his PTSD, insomnia, social anxiety, depression, and traumatic brain injury prevent him from securing or following any substantial gainful occupation. A May 2017 VA psychologist noted that the Veteran experienced recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, and intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). The VA psychologist also noted symptoms such as hypervigilance, problems with concentration, sleep disturbance, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, flattened effect, and suicidal ideation. The VA psychologist noted that the Veteran experienced occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. A February 2018 private psychologist noted that the Veteran has been receiving mental health treatment for PTSD and depression since 2010. The Veteran reported that he did not transition well back into civilian life and takes medications for his condition. The private psychologist noted that the Veteran's ability to deal with the normal pressures in a competitive work setting is extremely impaired and not expected to substantially improve in the foreseeable future. In September 2018 the Social Security Administration (SSA) furnished the VA with medical treatment records. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991). These records include an August 2017 Assessment of Vocational Factors in which a disability adjudicator noted that the Veteran is limited to unskilled work because of his impairments. These records also include a disability report which indicates the Veteran was taking several medications for his PTSD. His work history report indicates that he last worked in September 2016 as a deckhand. Prior to that he assisted a biologist doing marine research and worked as a plumber's apprentice. It is clear from the Veteran's lay and medical reports that his PTSD has impacted his ability to work from April 8, 2017. As the issue of entitlement to a TDIU is part and parcel of April 8, 2017 claim for an increased rating for PTSD, and there is evidence that the Veteran was unemployable due to his service connected PTSD on that date, an effective date of April 8, 2017 is warranted. That is the date of the claim for an increased rating for PTSD from which the issue of entitlement to a TDIU was inferred and the Veteran was eligible for TDIU on a schedular basis on this date. For the foregoing reasons, entitlement to an effective date of April 8, 2017, is warranted for a TDIU. 2. Withdrawal of appeal for an increased rating for PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the issue on appeal is entitlement to an increased rating greater than 70 percent for PTSD. In an April 2021 written statement, the Veteran through his representative indicated that he wanted to withdraw his appeal for an increased rating for PTSD. This statement constitutes a valid withdrawal of the Veteran's appeal as it complied with the requirement of the applicable regulation by including the name of the Veteran, the applicable VA file number and a statement that the appeal was withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020) (written withdrawals need only comply with 38 C.F.R. § 20.204(b), now 38 C.F.R. § 19.55(b)). Under these circumstances, the matter is no longer within the Board's jurisdiction and must be dismissed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.