Citation Nr: A25035696
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 240723-457834
DATE: April 17, 2025

ORDER

Entitlement to an earlier effective date, of May 18, 2021, for the award of a total disability rating based on individual unemployability (TDIU) is granted.

REMANDED

Entitlement to a TDIU, prior to May 18, 2021, is remanded.

FINDING OF FACT

The Veteran met the schedular criteria for TDIU on May 18, 2021, during the period on appeal.

CONCLUSION OF LAW

The criteria for an earlier effective date of May 18, 2021, for the award of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.400, 3.2500.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty in the United States Army from November 1977 to November 1980.

This appeal is before the Board of Veterans' Appeals (Board) on appeal of a July 2024 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Given the date of the rating decision on appeal, the Veteran's appeal is governed by the modernized review system (known by the Board as AMA). 38 C.F.R. § 19.2.

In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to TDIU prior to May 18, 2021, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

Earlier effective date for the award of TDIU

The Veteran is seeking an earlier effective date, prior to October 27, 2022, for the award of TDIU.

Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically, as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o).

The Court has 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 award 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)(3); 38 C.F.R. § 3.400(o)(1), (2); Harper v. Brown, 10 Vet. App. 125. See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a Veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim...to receive the benefit of an earlier effective date").

With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable.

The Veteran's combined disability rating met the schedular requirements for TDIU on May 18, 2021. The Veteran filed a formal application for TDIU on October 27, 2022. Here, he indicated that he has been unable to work due to his service-connected conditions since October 2020. VA treatment records from October 2020 document the Veteran reporting that he is filing paperwork for retirement from his job due to breathing complications at work associated with his service-connected obstructive sleep apnea. The Veteran's assertions are further substantiated by a private medical opinion submitted in October 2022 in which the private physician opines that the Veteran has been unable to work since October 2020 due to his service-connected disabilities. The Veteran filed his claim for TDIU within one year of filing a claim for increase for his service-connected obstructive sleep apnea. 

Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU claim is a component of an increased rating claim. Therefore, under Rice, entitlement to an earlier effective date for TDIU must be considered in conjunction with the claim for increased ratings for his service-connected obstructive sleep apnea.

Here, the Veteran filed a VA Form 21-526EZ Claim for increase for his service-connected obstructive sleep apnea on September 25, 2020. The Veteran's claim was denied in a November 06, 2020 rating decision. The Veteran filed a Supplemental Claim for increase for obstructive sleep apnea on November 04, 2021. VA regulations permit claimants to continue to pursue issues after receiving an initial decision that they do not agree with. 38 U.S.C. § 501; 38 C.F.R. § 3.2500(c). After an initial decision, within one year, a claimant may file a supplemental claim, request a higher-level review, or appeal to the Board. 38 U.S.C. § 501; 38 C.F.R. § 3.2500(c)(1). Supplemental claims are claims that claimants may file on the prescribed form at any time following a decision with which the claimant disagrees, and, if new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction (AOJ) will readjudicate the claim considering all of the evidence of record. 38 U.S.C. §§ 501, 5103A(h), 5108; 38 C.F.R. § 2.2501. The effective date of a continuously pursued claim is the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 U.S.C. § 501; 38 C.F.R. § 3.2500(h)(1).

On October 27, 2022, within a year of the filing of the Supplemental Claim, the Veteran filed a formal claim for TDIU. Thus, the Veteran's claim for TDIU was part and parcel of the claim for an increased rating for obstructive sleep apnea which was initially filed on September 25, 2020.

Here, competent and credible evidence of record suggests that the Veteran has been unable to work due to his service connected disabilities since October 2020. Further, the Veteran met the schedular criteria for TDIU on May 18, 2021. Under these circumstances, the Board finds that entitlement to an earlier effective date of May 18, 2021, is warranted for the award of TDIU as this is the date that the Veteran's combined disability rating met the schedular requirements for TDIU during the period on appeal.

Whether the Veteran is entitled to an effective date earlier than May 18, 2021, will be discussed in the remand section of this decision.

Accordingly, entitlement to an earlier effective date, of May 18, 2021, for the award of TDIU is warranted.

REASONS FOR REMAND

Effective date earlier than May 18, 2021, for TDIU

If the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

Here, the Veteran asserts, and medical evidence of record suggests, that he has been unable to secure and maintain substantially gainful employment due to his service connected disabilities since October 2020. However, the Veteran does not meet the percentage standards set forth in § 4.16(a) for schedular TDIU prior to May 18, 2021. Therefore, the Board may not consider the Veteran's claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that the Veteran is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b).  

The matter is REMANDED for the following action:

Refer the Veteran's claim for TDIU prior to May 18, 2021, to VA's Director of Compensation Service for extraschedular consideration. 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. K. Hall, 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.