Citation Nr: A21011187 Decision Date: 06/25/21 Archive Date: 06/25/21 DOCKET NO. 200504-81559 DATE: June 25, 2021 ORDER An earlier effective date of July 28, 2012 for a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. A TDIU claim was reasonably raised by the record as of July 28, 2012, as part and parcel of the initial claim for adjustment disorder with anxiety and PTSD for which the Veteran has continuously pursued a higher rating. This service-connected disability precluded him from securing and following a substantially gainful occupation from July 28, 2012 onwards. 2. The Veteran was not service-connected for any disability prior to July 28, 2012. CONCLUSION OF LAW The criteria for an earlier effective date of July 28, 2012 for the assignment of a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2008 to July 2012. In August 2019, the Board of Veterans' Appeals (Board) granted a TDIU in a Supplemental Decision to a prior August 2018 Board decision finding that the Board erred by not adjudicating the issue of entitlement to a TDIU which was reasonably raised by the record as part and parcel of an initial increased rating claim for service-connected adjustment disorder with anxiety and PTSD on appeal at the time of the August 2018 Board decision. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability"). The Board found that a TDIU claim had been pending since for the entire appeal period corresponding with the initial increased rating claim. The Agency of Original Jurisdiction (AOJ) implemented the Board's grant of a TDIU in a February 2020 rating decision assigning an effective date of March 19, 2019, the date a formal application for TDIU was received. The Veteran appealed this effective date via a May 2020 VA Form 10182, electing the Direct Review appeal lane. An earlier effective date for the grant of a TDIU Legal Criteria Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. In this context, the law provides that the effective date of the award "shall be the earliest date as of which it is factually 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); 38 C.F.R. § 3.400 (o)(2). TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). Factual Background & Analysis From July 28, 2012, the Veteran met the schedular criteria for a TDIU because his service-connected connected adjustment disorder with anxiety and PTSD has been assigned a 70 percent rating from that date onwards. 38 C.F.R. § 4.16 (a). A March 2019 formal TDIU application documents that after separation from service the Veteran worked one day for a temp agency in August 2015 and temporarily for an event staffing company in 2016, working 24 hours per week. The Board cites to the September 2016 Disabilities Benefits Questionnaire completed by Dr. H.H.G. which the Board discussed in detail in its August 2019 Supplemental Decision granting a TDIU. Upon examination, Dr. H.H.G. found that the Veteran's concentration appeared variable, he reported increased trouble with short and long-term memory, presented below average intellectual abilities, and demonstrated below an average ability for abstraction. The examiner opined that the Veteran's symptoms had been in existence since the Veteran separated from the military and his PTSD symptoms "[were] preventing him from maintain[ing] substantially gainful employment." Further, a February 2014 VA mental health examination report documented the Veteran's reports of "moderately severe occupational impairments and moderate social impairments related to symptoms of PTSD." The Veteran stated that he has been homeless since July 2013 and required the assistance of his brother for transportation due to experiencing severe panic attacks when he left his home. The Veteran presented to the examination with symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintain effective work and social relationships, and difficulty in adapting to stressful circumstances. In view of the foregoing, the Board finds that July 28, 2012 is the proper effective date for the award of the Veteran's TDIU. The probative medical evidence of record demonstrates that the Veteran has been prevented from maintaining substantially gainful employment due to his service-connected psychiatric disability since his separation from service. Because an implicit claim for a TDIU was raised as part of the increased rating claim for service-connected connected adjustment disorder with anxiety and PTSD with an appeal period beginning on July 28, 2012, this earlier effective date is granted. However, under the applicable laws and regulations, there is no basis for finding an even earlier effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.