Citation Nr: A25035206 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 250226-522090 DATE: April 16, 2025 ORDER An effective date prior to August 10, 2022, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. New and material evidence had not been received within one year following the issuance of the November 2018 rating decision which awarded an increased rating for the Veteran's service-connected posttraumatic stress disorder (PTSD). 2. A TDIU has been awarded as of August 10, 2022, the date service connection was established for colon cancer, neuropathy of the bilateral upper and lower extremities associated with colon cancer, and hypertension. CONCLUSION OF LAW The criteria for entitlement to an effective date for a TDIU rating prior to August 10, 2022, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1966 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued on February 13, 2025, by a Department of Veterans Affairs (VA) Regional Office, herein referred to as the Agency of Original Jurisdiction (AOJ), under the Appeals Modernization Act (AMA). Notably, in the February 2025 rating decision, the AOJ awarded entitlement to a TDIU. However, the Veteran's claim was originally denied in a rating decision issued on October 8, 2024. Thereafter, the Veteran submitted a Decision Review Request: Higher Level Review (HLR) (VA Form 20-0996) requesting a review of the October 2024 rating decision. In February 2025, the AOJ issued the HLR decision on appeal. In February 2025, the Veteran submitted a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and elected the Direct Review docket. Based on such election, the Board may only consider evidence of record at the time of the October 2024 rating decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. At the time, the Veteran waived any additional time within which to modify the Board review docket. See Williams v. McDonough, 37 Vet. App. 305 (2024). If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 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. Entitlement to an effective date prior to August 10, 2022, for the award of TDIU. The Veteran has been awarded a TDIU as of August 10, 2022, but asserts that the appeal period stems from July 2018, the date VA received the Veteran's claim for an increased rating for his service-connected posttraumatic stress disorder (PTSD). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an 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." 38 C.F.R. § 3.400. A TDIU claim qualifies as a claim for increased disability compensation. The United States Court of Appeals for Veterans Claims (Court) determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Significantly, in Norris, supra, the Court held that, when the AOJ is considering a claim for an increased rating from a claimant whose schedular rating meets the minimum criteria of 38 C.F.R. § 4.16(a), and there is evidence of current service-connected unemployability in the record, evaluation of that rating increase must also include evaluation of a reasonably raised claim for a TDIU. The Federal Circuit has also held that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based on individual unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Similarly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. A request for a 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 which is part of a pending claim for increased compensation benefits. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, VA received the Veteran's claim for an increased rating for his service-connected PTSD on July 31, 2018. A rating decision issued in November 2018 awarded a 70 percent rating, effective July 31, 2018, the date of receipt of his increased rating claim. The Veteran was notified of the decision later that same month; however, he did not file a timely notice of disagreement with the decision. Further no new and material evidence was physically or constructively received within one year of the issuance of the rating decision, and no relevant service department records were subsequently received. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran and his representative argue that a VA treatment record dated November 5, 2019, serves as new and material evidence as such was not associated with the record at the time of the November 2018 rating decision and it speaks to the Veteran's occupational impairment due to his PTSD. Thus, they contend that the November 2018 rating decision is not final. Here, the Board notes that VA treatment records were not actually received by the AOJ within one year of the November 2018 rating decision. However, such VA treatment records received in 2021 reflect ongoing treatment for the Veteran's acquired psychiatric disorder within one year of the issuance of the rating decision. Therefore, the AOJ is considered to have been in constructive possession of those records within one year of November 2018. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Turner v. Shulkin, 29 Vet. App. 207, 218 (2018); Bell v. Derwinski, 2 Vet. App. 363 (1992); 38 C.F.R. § 3.103 (c)(2)(iii) ("Constructive receipt of VA treatment records"). However, the Board finds that the evidence added to the record following the issuance of the November 2018 rating decision was cumulative and redundant of the prior evidence and does not raise a reasonable possibility of substantiating the Veteran's claim. Specifically, prior to the November 2018 rating decision, the Veteran underwent a VA examination in August 2018. At the time, he endorsed symptoms of chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships and impaired impulse control. He also reported increased isolation, and depressed mood. Additionally, at the time, the Veteran indicated that he received a warning letter for deficient performance in June 2018 from his employer, but he was currently working. Based on the reported symptoms, the Veteran was awarded a 70 percent rating for his service-connected PTSD. Included in VA treatment records received in November 2021, are mental health treatment reports dated April 2019, August 2019, and November 5, 2019. In April 2019, the Veteran reported symptoms of feeling depressed, irritability, decreased motivation, work stresses, lack of focus, decreased production at work, difficulty sleeping, anxiety, anger outbursts and intrusive memories. In August 2019, he reported isolation, difficulty sleeping, depression, difficulty with memory, hypervigilance, anxiety, and intrusive memories. Finally, in November 2019, he reported improved mood, isolative behaviors, lack of energy, lack of focus, forgetfulness, hypervigilance, sleep disturbances, anxiety, and anger outburst. With respect to unemployability, the August 2019 note indicates that he tried to avoid conflicts at work, and an October 2019 VA treatment record from a sleep clinic visit indicates that he frequently took naps in his car when working due to sleepiness. Finally, in November 2019, he indicated that he was on administrative leave with work and was being forced to retire. However, upon review, the Board finds that the evidence does not suggest a worsening of his PTSD symptoms. Rather, the symptoms reported during the VA mental health treatment appointments are similar to that of the August 2018 VA examination. Moreover, at the time, the evidence does not show that the Veteran's unemployability is a result of his PTSD or any other service-connected conditions. Therefore, as the evidence does not raise a reasonable possibility of substantiating the claim, or suggest a worsening of symptoms, the Board finds that such newly received evidence is not material. The Board also notes that, historically, under the former 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. In Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013), the Court held that the former 38 C.F.R. § 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA. The Court also has held that, in the absence of sufficient manifestation of an intent to apply for benefits for a particular disease or an injury, a document merely providing medical information in and of itself is not an informal claim for VA benefits. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). Notably, VA received the Veteran's formal Application for Increased Compensation Based on Unemployability (VA Form 21-8940) on January 2, 2024. At the time, he had pending claims regarding his service-connected hypertension, colon cancer, radiculopathy of the bilateral upper and lower extremities associated with colon cancer, bilateral shoulder disability, and back disability, which stem from a February 21, 2023 intent to file a claim. However, the Veteran was awarded a TDIU as of August 10, 2022, the date he was also awarded service connection for hypertension, colon cancer, and radiculopathy of the bilateral upper and lower extremities associated with colon cancer, pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which was signed into law on August 10, 2022. In this regard, the Board notes that VA received the Veteran's intent to file a claim for service connection on February 21, 2023, and his formal claim for service connection of March 3, 2023. Thus, the earliest possible date for the award of a TDIU is August 10, 2022. See Delrio v. Wilkie, 32 Vet. App. 232 (2019) (holding a TDIU cannot be awarded earlier than the effective date of service connection for a disability causing unemployability). Consequently, an effective date prior to August 10, 2022, for the award of a TDIU is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Wendy Daknis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Waite, Jennifer 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.