Citation Nr: A25035019 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240129-412824 DATE: April 16, 2025 ORDER The motion for revision of an April 2016 rating decision on the basis of clear and unmistakable error (CUE) with respect to the effective date assigned for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The assignment of an effective date of April 23, 2015 for the award of a TDIU in the April 2016 rating decision was not CUE, as it is not undebatable that there was a pending claim for TDIU prior to that date. CONCLUSION OF LAW The criteria for revision of the April 2016 rating decision on the basis of CUE with respect to the effective date assigned for the award of entitlement to TDIU are not met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1985 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran filed a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in January 2024 and elected the Direct Review option. See 38 U.S.C. §§ 7105, 7113(a); 38 C.F.R. §§ 20.202, 20.203. Under the Direct Review option, the Board's decision will be based on the evidence of record at the time of the AOJ decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.301, 20.801(a). Accordingly, the Board may only consider the evidence of record at the time of the January 2024 AOJ decision. See id. If evidence was submitted by the Veteran or otherwise added to the claims file since the AOJ decision on appeal, the Board has not considered it at this time. See id. If the Veteran would like VA to consider any evidence that the Board could not in consider in this decision, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. CUE A. Law Previous determinations which are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, a rating decision or other decision that constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the reversed decision. Id. There is a three-part test to determine whether a decision must be revised or reversed based on CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied;" (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). B. Analysis The Veteran's CUE motion challenging the effective date for the award of TDIU assigned in the April 2016 rating decision is denied, for the reasons that follow. Preliminarily, although the January 2024 AOJ decision on appeal phrased the issue as entitlement to an earlier effective date for the award of TDIU, the body of the decision focuses on whether there was CUE in the April 2016 rating decision. Moreover, the record does not show that the Veteran intended to file a freestanding claim for an earlier effective date, which in any event is not permitted by law. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Rather, the "claim" adjudicated in the January 2024 AOJ decision was his statement that the April 23, 2015 effective date for the award of TDIU is a "CUE case." See December 2013 VA Form 21-4138 (Statement in Support of Claim). The AOJ construed that statement as a motion for revision of the April 2016 rating decision, which granted TDIU and assigned an effective date of April 23, 2015 for the award. The April 2016 rating decision is final. In that regard, under VA's legacy appeal system, which applies to decisions issued prior to February 19, 2019, see 38 C.F.R. § 19.2, a determination on a claim by the AOJ of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2018) (setting forth requirements and time limits for initiating and perfecting an appeal under VA's legacy appeal system). Here, VA notified the Veteran of the April 2016 rating decision and his appellate rights in a May 2016 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not file a NOD, or submit or identify additional evidence during the appeal period having a bearing on the effective date for the award of TDIU. See 38 C.F.R. §§ 20.200, 20.201, 20.302; see also 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding that § 3.156(b) requires VA to "assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence related to the old claim"). Consequently, the April 2016 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Accordingly, as discussed, the April 2016 rating decision may only be challenged by a motion for revision or reversal based on CUE. The Board finds no CUE in the April 2016 decision with respect to the effective date assigned for the award of TDIU, for the following reasons. Effective Dates Under VA law prior to February 19, 2019, which is the effective date of the modernized review system, see 38 C.F.R. § 19.2, and except as otherwise provided, 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; 38 C.F.R. § 3.400. The 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 the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period . Id.; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Hazan v. Gober, 10 Vet. App. 511, 519 (1992). With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101; 38 C.F.R. § 3.151. A submission of an application form prescribed by the Secretary, whether paper or electronic, must meet the requirements of a complete claim as set forth in 38 C.F.R. § 3.160. A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA for an evaluation or award of benefits under the laws administered by VA. 38 C.F.R. § 3.155(d). A claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. Id. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Id. An intent to file a claim must identify the general benefit (e.g., compensation, pension) but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155(b)(2). If within one year of receipt of the intent to file a claim VA receives a complete application form prescribed by the Secretary as defined in 38 C.F.R. § 3.160(a) appropriate to the benefit sought, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). Prior to March 2015, VA regulation defined a "claim" or "application" as "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). An original claim for pension, compensation, or dependency and indemnity compensation was defined as an initial formal application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). Regarding informal claims, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2013); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. Id. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. The essential elements of any claim, whether formal or informal, are (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). A claim for compensation "is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality." Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020). "The requirement to identify the benefit sought means that a claimant must describe the nature of the disability for which he is seeking benefits." Brokowski, 23 Vet. App. at 86. "A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. In addition, for informal claims, where a claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. § 3.155(a). Shea v. Wilkie, 926 F.3d, 1362, 1370 (Fed. Cir. 2019). Analysis Here, VA received an intent to file from the Veteran on April 23, 2015. On November 23, 2015, the Veteran filed a fully developed claim for TDIU (VA Form 21-526EZ) and an application for TDIU (VA Form 21-8940). The April 2016 rating decision granted TDIU based on the Veteran's service-connected PTSD alone, and assigned an effective date of April 23, 2015 for the award based on the intent to file received on that date. 38 C.F.R. § 3.155(b). The record does not show a formal or informal claim or application for TDIU prior to April 23, 2015. Moreover, the assignment of an effective date of April 23, 2015 for the award of TDIU was proper under 38 C.F.R. § 3.155(b). Thus, it is not undebatable that the April 2016 rating decision committed an error of fact or law. On the contrary, the effective date of April 23, 2015 was proper under both the facts and law at the time. The Veteran argues that an effective date of April 20, 2011 should have been assigned for the award of TDIU based on the effective date of the 70 percent rating assigned his PTSD, which is also the effective date of service connection for that disability. See January 2024 VA Form 21-4138; December 2023 VA Form 21-4138. Specifically, he states that his claim for PTSD and its initial evaluation reasonably raised the issue of entitlement to TDIU at the time. See id. He cites Norris v. West in that regard, which held that TDIU is "merely an alternate way to obtain a total disability rating without being rated 100% disabled under the Rating Schedule." 12 Vet. App. 413, 420-21 (1999). See id. He further cites Norris for the proposition that if "VA does not forward a formal application form to a claimant who has presented an informal claim under § 3.155(a), the one-year period for filing a formal application is not triggered, and the informal claim must be accepted as the application for purposes of establishing the effective date under 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2)." Id. at 417; see January 2024 VA Form 21-4138. In that regard, he argues that a VA PTSD examination performed as part of the development of his claim for PTSD showed he could not work, and thus constituted an informal claim for TDIU that remained unadjudicated. The Veteran's arguments do not alter the Board's finding that there was no CUE in the April 2016 rating decision with respect to the effective date assigned for the award of TDIU, which was based on the date of claim, because it is not undebatable that the record shows a pending informal claim when the April 2016 rating decision was issued. Specifically, a March 2012 rating decision granted service connection for PTSD with an initial rating of 50 percent, and a September 2013 rating decision granted an initial rating of 70 percent effective April 20, 2011, the effective date of service connection. It is not undebatable that the record reasonably raised the issue of unemployability due to PTSD at that time. In that regard, "a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, there would be no need for the Veteran to file a claim for TDIU if the record otherwise reasonably raised that issue at the time of the initial evaluation of his PTSD. But, as stated, it is not undebatable that the record reasonably raised the issue of unemployability due to PTSD at the time. On the contrary, the October 2011 and May 2013 examinations, which were the two examinations performed as part of the development of the claim, indicate that the Veteran was working. Further, a June 2014 VA treatment record states that he worked 8 hours per day and 5 times per week. Thus, it is not undebatable that, at the time of the April 2016 rating decision, the record had raised an informal "claim" for TDIU prior to April 23, 2015 that was pending and unadjudicated. The Board will also point out that, although post-dating the April 2016 rating decision, and thus not strictly relevant to the issue of whether there was CUE in that decision, a May 2016 statement from the Veteran's employer (VA Form 21-4192), see May 2016 Third Party Correspondence, states that he last worked on October 16, 2015, which is after the effective date of the award of TDIU. While that evidence post-dates the April 2016 rating decision, it further supports a finding that it is not undebatable that the evidence reasonably raised the issue of unemployability due to PTSD prior to April 2015 at the time of that decision. That said, the Board emphasizes that the May 2016 employer statement is not necessary or even relevant to the Board's finding that there was no CUE in the April 2016 rating decision. If the employer statement were not of record, the Board's conclusion would be the same. Finally, and purely for the sake of argument, even if there was evidence at the time of the September 2013 rating decision that reasonably raised the issue of entitlement to TDIU due to PTSD, so that the issue should have been adjudicated in that decision as part and parcel of the evaluation of his PTSD, that would not have a bearing on whether there was CUE at the time of the April 2016 rating decision with respective to the effective date for the award of TDIU; it would only have a bearing on whether the September 2013 rating decision should have adjudicated that issue. As discussed, "a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation." Rice, 22 Vet. App. at 453. Thus, there would still be no pending claim for TDIU prior to April 23, 2015 at the time of the April 2016 rating decision. The Board notes that the Veteran has not challenged the September 2013 or March 2012 rating decisions on the basis of CUE with respect to whether they did not properly evaluate his PTSD by granting TDIU at the time. Thus, that issue is not before the Board. That said, the Board will again observe that it finds no evidence reasonably raising that issue prior to April 2015, as discussed above. In sum, the Board finds that CUE was not committed in the April 2016 rating decision with respect to the effective date assigned for the award of TDIU; therefore, the Veteran's motion for revision of the assignment of that date based on CUE is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin 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.