Citation Nr: 21041947 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-35 504 DATE: July 10, 2021 ORDER An effective date earlier than July 17, 2015 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. On October 27, 2009, the Veteran filed a claim for service connection for a right knee disability. 2. In a January 2010 rating decision, the RO granted service connection for the Veteran's right knee, assigning a 10 percent disability rating, effective October 27, 2009, the date of the Veteran's claim. 3. In March 2010, the Veteran disagreed with the January 2010 rating decision, arguing that his right knee disability rating should be higher than the assigned 10 percent. 4. On July 17, 2015, the Veteran filed a claim for entitlement to a TDIU. 5. In an April 2016 rating decision, the RO granted the Veteran's claim for entitlement to a TDIU effective July 17, 2015, the date of his claim. 6. In an April 2017 Notice of Disagreement (NOD), the Veteran disagreed with the effective date of his TDIU, arguing that he met the criteria as far back as October 27, 2009, because of his multiple orthopedic conditions he was service connected for. 7. In a January 2020 remand, the Board ordered the RO to issue a Statement of the Case (SOC) for the Veteran's increased rating claim. Back in March 2010, he had disagreed with the January 2010 rating decision, but the RO had never issued a SOC. The Board also ordered the RO to obtain an extraschedular opinion regarding the Veteran's earlier effective date claim for a TDIU. 8. On January 5, 2021, the RO issued an SOC concerning the issue of an initial increased rating for the Veteran's right knee and continued the 10 percent rating. This SOC contained notice that in order for the Veteran to perfect his appeal to the Board, he needed to submit a VA Form 9, Substantive Appeal, within 60 days. 9. Neither the Veteran nor his representative submitted a Form 9 for the issue of an initial increased rating for the right knee. Because of this, the appeal for the right knee was never perfected and the January 2010 rating decision, granting service connection for the right knee and assigning a 10 percent disability rating, became final. 10. Because the Veteran never perfected his right knee claim, there is no increased rating claim for the TDIU to attach to under Rice v. Shinseki, 22 Vet. App. 447 (2009). 11. The Veteran made no submission to VA prior to July 17, 2015, which may be construed as a formal or informal claim for entitlement to a TDIU. No such submission demonstrated an intent to apply for benefits for entitlement to a TDIU prior to July 17, 2015. CONCLUSIONS OF LAW 1. The January 2010 rating decision that granted service connection for a right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria have not been met for an effective date earlier than July 17, 2015 for the grant of entitlement to a TDIU. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1968 to June 1970, June 1973 to June 1975, May 2002 to March 2003, January 2007 to February 2008, and from September 2008 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case was previously before the Board in January 2020 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). In the January 2020 remand, the Board determined that in March 2010, the Veteran sought a higher rating for his right knee disability just a few months after service connection was granted in January 2010. The Veteran reasonably disagreed with the initial rating assigned, and the Board construed this as an NOD. Because the Veteran filed an NOD to the initial rating assigned for his right knee disability within one year of the January 2010 rating decision, the issuance of a Statement of the Case was required. Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2016). On January 5, 2021, the RO issued a SOC concerning the issue of an initial rating in excess of 10 percent for the Veteran's service-connected right knee disability. Contained within the SOC was notice instructing the Veteran how to perfect his appeal to the Board, by submitting a VA Form 9, Substantive Appeal, within 60 days. The RO may close an appeal without notice to an appellant or his or her representative for failure to respond to a SOC within the period allowed. 38 C.F.R. § 19.32. In this case, the Veteran and his representative did not submit a VA Form 9 to the January 2021 SOC. Because of this, the appeal for an initial rating in excess of 10 percent for a right knee disability was never perfected and the claim became final. An appeal that is not perfected cannot be adjudicated by the Board. Earlier Effective Dates Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received within one year of that date. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Veteran's Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper; 38 C.F.R. § 3.400(o)(1),(2); VAOPGCPREC 12- 98 (1998). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Additionally, the submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering informal claims based on medical records, the date of claim will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment; and the date of receipt for evidence from a private physician, layman, state, or other institution. See 38 C.F.R. §§ 3.155(c); 3.157(b). An effective date earlier than July 17, 2015 for the grant of a TDIU is denied. In this case, the Veteran seeks an effective date earlier than July 2017, 2015 for the grant of a TDIU. In his April 2017 NOD, the Veteran claimed that his TDIU should be assigned effective October 27, 2009, the date he was service connected for multiple orthopedic disabilities. Additionally, the Veteran asserts that he is entitled to an earlier effective date under Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. As noted previously in the Findings of Facts section, on October 27, 2009, the Veteran filed a claim for service connection for a right knee disability. In a January 2010 rating decision, the RO granted service connection for his right knee, assigning a 10 percent rating effective October 27, 2009, the date of the Veteran's claim. In March 2010, the Veteran disagreed with the January 2010 rating decision, arguing that his right knee disability rating should be higher than the assigned 10 percent. This NOD essentially created a new increased rating claim for the Veteran's right knee. Because of Rice, the Veterans increased rating claim for his right knee disability also encompassed a claim for entitlement to a TDIU. Because of this, if the Veteran had a valid appeal for an increased rating prior to July 17, 2015, it is possible that he could be awarded an earlier effective date for his TDIU. In the January 2020 remand, the Board ordered the RO to provide the Veteran and his representative with a SOC concerning the issue of entitlement to an initial rating in excess of 10 percent for a right knee disability. See Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2016). On January 5, 2021, the RO issued a SOC concerning this issue. The Veteran then had 60 days to submit a VA Form 9, Substantive Appeal, to perfect his appeal. No Form 9 was submitted by the Veteran or received by the RO. Because of this, the appeal for an initial rating in excess of 10 percent for a right knee disability was never perfected and the January 2010 rating decision became final. 38 C.F.R. § 19.32. With the Veteran failing to perfect his increased rating claim for his right knee, he has no open or ongoing increasing rating claim. Without an increased rating claim, he has no claim that qualifies for a Rice TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the Veteran made no submission to VA prior to July 17, 2015 which may be construed as a formal or informal claim for entitlement to a TDIU. No such submission demonstrated an intent to apply for benefits for a TDIU prior July 17, 2015. In July 2015, the Veteran filed a claim for entitlement to a TDIU. Ina n April 2016 rating decision, the RO granted entitlement to a TDIU effective July 17, 2015, the date of his claim. While the Veteran and his representative have argued that the effective date for his TDIU should go back to the date of his increased rating claim for his right knee disability, that is not possible because the Veteran never perfected that appeal. Because the Veteran never submitted a VA Form 9 to the January 2021 SOC, the January 2010 rating decision became finale, extinguishing that appeal. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. According to 38 C.F.R. § 3.400, the effective date of an award of compensation based on an original claim, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later" (emphasis added). Because the January 2010 rating decision became final, and the Veteran did not file a claim for entitlement to a TDIU prior to July 17, 2015, the effective date is the date of the Veteran's claim for entitlement to a TDIU, July 17, 2015. Id. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.