Citation Nr: 21031152 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-04 522 DATE: May 20, 2021 ORDER Entitlement to an effective date prior to February 9, 2010 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A September 2008 rating decision denied entitlement to TDIU. The Veteran appealed that decision in an August 2009 notice of disagreement (NOD). 2. On February 9, 2010, the Department of Veterans Affairs (VA) received a written withdrawal of the appeal for entitlement to TDIU from the Veteran's representative of record at that time; the withdrawal includes the name of the Veteran and file number and unambiguously identifies that the appeal for entitlement to TDIU is withdrawn. 3. Because the Veteran, through his representative, withdrew his appeal of entitlement to TDIU on February 9, 2010, the September 2008 rating decision denying TDIU is final. 4. After the Veteran withdrew his appeal of entitlement to TDIU on February 9, 2010, the next correspondence that can be interpreted as a claim of entitlement to TDIU was a claim for an increased rating for the Veteran's service-connected posttraumatic stress disorder (PTSD) that was also received on February 9, 2010. 5. There was no claim for TDIU or an increased rating that remained pending prior to February 9, 2010. 6. The date of claim for the current matter is February 9, 2010, the date of the claim for an increased rating for PTSD. 7. It is not factually ascertainable that the Veteran's service-connected disabilities worsened within the one-year period prior to February 9, 2010 such that he became unable to secure or follow substantially gainful occupation during, and not prior to, that period. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 9, 2010 for the grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110, 7105 (2018); 38 C.F.R. §§ 20.204 (2009), 3.1, 3.155 (2014, 2020), 3.102, 3.160, 3.340, 3.341, 3.400, 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a July 2016 rating decision by VA. This issue was denied by the Board in a June 2020 Board decision. The Veteran appealed that decision to the Court, which vacated the decision pursuant to a December 2020 Joint Motion for Remand. The issue is once again before the Board. Entitlement to an effective date prior to February 9, 2010 for the grant of TDIU. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim 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. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. See 38 C.F.R. § 3.1(p) (2020). A claim for TDIU is essentially a claim for an increased rating. The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). The increase in disability must be within the one-year period prior to the date of claim, rather than prior to the one-year period, in order to obtain an effective date earlier than the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 983-984 (Fed. Cir. 2010). Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). An appeal may be withdrawn as to any or all issues involved in the appeal. Appeal withdrawals must include the name of the veteran, the VA file number, and a statement that the appeal is withdrawn. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction (AOJ). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement (NOD) and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55. Prior to February 19, 2019, a final claim is one in which the period to file a notice of disagreement has expired or there is a disposition on appellate review. 38 C.F.R. § 3.160(d)(1). A claimant must file a notice of disagreement within one year from the date that notice of the determination is mailed to him or her. 38 C.F.R. § 19.52. When the matter of entitlement to TDIU is raised by the record in any claim for an increased rating, such matter becomes part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Factual Background On October 13, 2006, the VA received a claim for an increased rating for the Veteran's PTSD. In a September 2008 rating decision, entitlement to TDIU was denied. The Veteran filed an NOD to that decision in August 2009. On February 9, 2010, VA received a written statement from the Veteran's representative with the Veteran's name and VA claim file number that read: "Request to cancel/withdraw appeal and hearing for entitlement to IU." Thereafter, on February 10, 2010, VA mailed a letter notifying the Veteran that it received the withdrawal from his representative, accepted it, and stated "If this was not your intent, you should contact us immediately." Simultaneous to his withdrawal, the Veteran's representative filed a claim for an increased rating for PTSD on February 9, 2010. The AOJ raised a claim of TDIU during the course of the claim for an increased rating for PTSD, finding that if a veteran potentially meets the criteria for TDIU and the veteran is not working, it must defer a claim of TDIU on a rating decision. See March 2010 VA memorandum. Thus, upon notifying the Veteran of the decision related to his PTSD claim, the AOJ provided the Veteran a copy of a VA Form 21-8940 and requested the Veteran to complete the form. See March 2010 VA notification letter. The Veteran thereafter filed a completed VA Form 21-8940 on March 29, 2010. The Veteran's TDIU claim remained active until TDIU was granted in a July 2016 rating decision on appeal. He did not appeal the claim for an increased rating for PTSD adjudicated in a March 2010 rating decision. Date of claim To establish an effective date earlier than February 9, 2010 for the grant of TDIU, the Veteran would need to show (1) that he had a prior claim of TDIU or an increased rating that remained pending, and, if so, (2) that such disability first manifested prior to February 9, 2010. See 38 C.F.R. § 3.400. The Veteran asserts that he is entitled to an effective date of October 13, 2006 because a February 2010 withdrawal of the issue of entitlement to TDIU was not valid. Specifically, the Veteran asserts that his submission of a new claim (VA Form 21-8940) within 60 days of his withdrawal is evidence that he did not intend to withdraw his original appeal. See January 2019 correspondence; March 2021 correspondence. Moreover, when the Board denied this matter in June 2020, the Veteran asserts that it "failed to explain its determination that the Veteran unambiguously withdrew his appeal with a full understanding of the consequences of his actions in February 2010[.]" See March 2021 correspondence. As an initial matter, the Board notes that the Veteran repeatedly cites to 38 C.F.R. § 20.204 (2020). See id. However, that regulation relates to where to file an NOD and does not discuss withdrawal. Instead, the applicable 2020 regulation for withdrawals under the legacy system is found at 38 C.F.R. § 19.55 (2020) and for the legal framework in place pursuant to the Appeals Modernization Act (AMA), the regulation is 38 C.F.R. § 20.205 (2020). Prior to the codification of the AMA, the applicable regulation for withdrawals was 38 C.F.R. § 20.204. The Board will infer from his assertions that the Veteran is discussing either 38 C.F.R. § 19.55 (2020) or 38 C.F.R. § 20.204 (2009), as they are identical as relevant to this matter. The Veteran cites Hembree v. Wilkie, 33 Vet. App. 1 (2020) and attempts to distinguish the facts of this case from the facts in Hembree. In Hembree, the Court found that there is not a requirement for an affirmative inquiry into whether a written withdrawal is done with full understanding. Indeed, the Court explained that, forcing an inquiry into the veteran's subjective understanding following the written withdrawal would impermissibly negate these provisions of the regulation, something we may not do. This is why the Board should ordinarily confine itself to deciding whether the withdrawal is valid based on examining the written submission to determine whether it complies with the requirements laid out in [38 C.F.R. § 19.55]. Of course, if the written withdrawal is itself ambiguousfor example, if it fails to adequately specify which claim is being withdrawnthe Board may need to consider other evidence. Moreover, when considering whether the submission is ambiguous, the Board should not lose track of the pro-claimant nature of the VA system. But this is not the appropriate case to decide what ambiguity or deviation from [§ 19.55] negates a withdrawal. It is enough to say that, if the withdrawal includes the name of the appellant and the file number and unambiguously identifies the claims to be withdrawn, then the written withdrawal will be considered valid and the Board need not look to other evidence to find it so. Id. at 6 (internal citations omitted) (emphasis added). The Veteran asserts that the current case is distinguishable from Hembree because he challenged the February 2010 withdrawal prior to the case reaching the Court. See March 2021 correspondence. He also asserts that Hembree did not prevent any post-withdrawal information that could call the propriety of a withdrawal into question. Id. The Veteran's attempt to distinguish Hembree is not persuasive. As made clear in the March 2021 correspondence, the Veteran is attempting to impose an additional burden on the Board to inquire whether he had "full understanding of the consequences of his actions in February 2010[.]" While the Court stated that there may be circumstances that call into question the propriety of a written withdrawal, this case is not one of them because the withdrawal was unambiguous on its face. Indeed, as stated explicitly by the Court, if a written withdrawal "includes the name of the appellant and the file number and unambiguously identifies the claims to be withdrawn, then the written withdrawal will be considered valid." Hembree, 33 Vet. App. at 6. The February 2010 written withdrawal contains the Veteran's name, the claim file number, and unambiguously identified that TDIU is withdrawn. As a result, the withdrawal is unambiguous, is valid and the appeal for TDIU was withdrawn, effective February 9, 2010. The Veteran is correct that the appellant in Hembree did not challenge the withdrawal until he got to the Court. But the discussion by the Court regarding that fact was merely whether the Board failed to give appropriate reasons and bases for finding the withdrawal valid. Indeed, the Court found that, because the issue had not been raised before the Board, the Board was not required to discuss any potential ambiguity. Id. at 8. Here, the Board is dedicating significant discussion to the validity and any possible asserted ambiguity of the February 2010 withdrawal. Thus, the fact that the Veteran raised the issue at the Board-level is irrelevant to the Board's ultimate finding that the February 2010 written withdrawal is valid. There is simply no ambiguity in the February 2010 written withdrawal. The Court in Hembree explicitly stated the requirements of a written withdrawalwhich are met here and discussed aboveand that forcing an inquiry into the Veteran's subjective understanding following the written withdrawal would impermissibly negate the provisions of regulation. All the Veteran's arguments regarding the invalidity of the withdrawal relate to his asserted lack of understanding, not any ambiguity on the face of the document. Because the Board is not required to inquire about the Veteran's subjective understanding, the evidence proposed by the Veteran in support of a finding that he did not understand the consequences of his withdrawal are irrelevant and given no probative weight. Indeed, for determining whether the February 2010 withdrawal is valid, it is irrelevant that the Veteran submitted a new VA Form 21-8940 in March 2010 (which, it should be noted, was at the request of the AOJ). It is irrelevant that the new claim was submitted within 60 days of the withdrawal and after VA's correspondence confirming the withdrawal. It is irrelevant that VA told the Veteran to notify VA if he did not intend to withdraw his claim. All such evidence proffered by the Veteran is not probative because it does not negate the lack of ambiguity on the face of the February 2010 written withdrawal. All such evidence relates only to an asserted lack of understanding. Moreover, there is no legal obligation for VA to accept the March 2010 claim as a response to rescind the Veteran's previous withdrawal; the Veteran cites to no law or regulation in support of his assertion. See January 2019 correspondence. Again, as explicitly stated by the Veteran in March 2021, he is attempting to force the Board to "explain its determination that the Veteran unambiguously withdrew his appeal with a full understanding of the consequences of his actions" (emphasis added), and the Court in Hembree explicitly found that the Board is not required to do that with an explicit and unambiguous written withdrawal. 33 Vet. App. at 5 ("regulation does not leave room for us to read into it a requirement for an affirmative inquiry into whether the withdrawal is done with full understanding."). Even if the Board were to inquire about the Veteran's subjective understanding of his written withdrawalwhich, as noted, it does not have to do because the withdrawal is unambiguous on its facethere is no evidence other than post-hoc rationalizations first raised approximately nine years later that the Veteran did not understand his withdrawal. The March 2010 claim is simply not evidence that the Veteran wanted his prior appeal to continue. He was presented with a new opportunity by the AOJ to file a VA Form 21-8940; there is no evidence he filed the new claim for any reason other than that the AOJ prompted him to do it during the course of a new claim. At that time, there was no mention of the withdrawal or that the withdrawal was unintended. The passage of a small amount of time after the withdrawal does not indicate in any way that he was attempting to undo his withdrawal. The AOJ should not be forced to guess whether any new correspondence or claim from a veteran is somehow a repudiation of a prior written withdrawal, which is exactly what the Veteran is trying to assert that the AOJ should have done in this case, and is exactly what the Court discussed, in Hembree, was not required. Notably, the only assertion by the Veteran that the February 2010 withdrawal is invalid is based on a lack of understandingthere is no assertion otherwise that the withdrawal is ambiguous. Again, there is simply no evidence that the February 2010 withdrawal is ambiguous on its face. While the Court found that there may be circumstances where post-withdrawal information could call the propriety of a withdrawal into question, the Veteran has only asserted a lack of understanding and the Court has explicitly ruled the Board does not have to inquire about the Veteran's understanding of the consequences of his action for a written withdrawal. In support of his claim, the Veteran also cited Verdon v. Brown, 8 Vet. App. 529 (1996), wherein the Court stated that the Board must provide adequate reasons and bases to support its conclusion that a claim is withdrawn. See March 2021 correspondence. Reliance on this case is unnecessary because the Board has discussed, in depth, the reasons and bases for why it is finding that the February 2010 written withdrawal is valid. As stated, the Board is finding that the withdrawal was valid because it contained the Veteran's name and file number, and unambiguously and explicitly withdrew the appeal of entitlement to TDIU. These facts alone are sufficient to find the withdrawal valid. In sum, because the Veteran's February 9, 2010 written withdrawal, submitted by his representative, stated his name and claim file number, and unambiguously and explicitly identified the claim that is to be withdrawn, the withdrawal is valid. Thus, effective February 9, 2010, the Veteran's original claim for TDIU was withdrawn and the September 2008 rating decision denying entitlement to TDIU is final. In addition, to the extent that it may be argued that the September 2008 rating decision may not be final, while adjudicating entitlement to TDIU in October 2014, the Board stated that the September 2008 rating decision was not final. Notably, the Board did not discuss the February 2010 withdrawal. See October 2014 Board decision. In May 2015, the Court vacated the Board's denial of entitlement to TDIU. On remand, the Board stated again that the September 2008 rating decision was the rating decision on appeal but did not provide any further discussion. See February 2016 Board remand. Neither of the Board's prior determinations regarding the finality of the September 2008 rating decision are decisive in this matter for multiple reasons. First, the Board's threshold finality determinations (either explicit or implicit) during the appeal for entitlement to TDIU were not final Board decisions as to the ultimate issue of entitlement to TDIU, and thus were not final decisions that are binding on the Board currently. See Dallman v. Wilkie, 33 Vet. App. 101, 108-09 (2020). Although Dallman discussed finality determinations in the context of reopening claims of service connection, the caselaw is applicable here because the finality of the September 2008 rating decision was not determinative on the issue of whether the Veteran was entitled to TDIU; the effective date of the grant of TDIU, like the effective date of service connection, is a downstream issue. Indeed, the downstream issue is currently before the Board and being adjudicated herein. Thus, there is no effect of any determinations by the Board in October 2014 or February 2016 on the finality of the September 2008 rating decision. Second, the Court vacated the October 2014 Board decision regarding entitlement to TDIU in its entirety. Thus, the Board's determination regarding the finality of the September 2008 rating decision, as it relates to TDIU, was also vacated. To the extent that the Board stated that the September 2008 rating decision was the decision on appeal in the February 2016 remand, there is no discussion of finality, let alone any discussion of the February 2010 withdrawal. Third, the Board's prior determination of finalityeither in the October 2014 decision or in the February 2016 remandis clear and unmistakable error. The Board never discussed the withdrawal and thus never discussed its implications. It is clear the Board simply did not see it in October 2014. Because the withdrawal is explicit and unambiguous, it is clear and unmistakable error for the Board to have previously determined that the September 2008 rating decision was not final. Because the September 2008 rating decision is final, the Veteran's date of claim cannot be October 13, 2006. The next correspondence that can be interpreted to be a claim of entitlement to TDIU was a claim for an increased rating for PTSD received on February 9, 2010. There was no claim for TDIU or an increased rating that remained active prior to February 9, 2010. As a result, the appropriate date of claim for this matter is February 9, 2010. Because the Veteran did not have a pending claim of TDIU or an increased rating prior to February 9, 2010, he is not entitled to an effective date prior to that date, regardless of entitlement, unless it is factually ascertainable that he was entitled to TDIU within (and not prior) to the one-year period prior to February 9, 2010. See 38 C.F.R. § 3.400(o)(2). Factually ascertainable TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). It 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Because a claim of TDIU is essentially a claim for an increased rating, the Board finds it appropriate to determine whether it is factually ascertainable that the Veteran's service-connected disabilities worsened during the one-year period prior to February 9, 2010 such that he was entitled to TDIU. See 38 C.F.R. § 3.400(o)(2). Notably, it must be factually ascertainable that the Veteran's service-connected disabilities worsened during the one-year period prior to February 9, 2010 such that he was entitled to TDIU, rather than prior to it. Gaston v. Shinseki, 605 F.3d 979, 983-984 (Fed. Cir. 2010). The Veteran was service-connected for PTSD and diabetes during the one-year period prior to February 9, 2010. Although he does not meet the schedular requirements for entitlement to TDIU prior to February 9, 2010, the Board will consider whether referral is necessary for extraschedular consideration for this one-year period. The Veteran asserts that he has been unable to work due to his service-connected PTSD since 1988. See, e.g., March 2021 correspondence; December 2007 VA Form 21-8940. Additionally, a private psychologist opined that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected PTSD since 1988. See October 2015 private opinion. There appears to be no evidence, including lay assertions, that the Veteran's diabetes has impacted his ability to work, to include during the one-year period prior to February 9, 2010. See, e.g., April 2010 VA diabetes examination; January 2008 VA diabetes examination. Even if the Board were to concede that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful occupation prior to February 9, 2010, the preponderance of the evidence reflects that the entitlement arose long before the one-year period prior to February 9, 2010 and not during it. As a result, it is not factually ascertainable that the Veteran's service-connected disabilities worsened within the one-year period prior to February 9, 2010 such that he became unable to secure or follow substantially gainful occupation during that period, and the Veteran is not entitled to an effective date during the one-year period prior to February 9, 2010. (Continued on next page) Because the date of claim for this matter is February 9, 2010 and it is not factually ascertainable that the Veteran's service-connected disabilities worsened within the one-year period prior to February 9, 2010, the Veteran is not entitled to an effective date prior to February 9, 2010 for the grant of entitlement to TDIU. Thus, the matter must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.