Citation Nr: A25035773 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240408-431450 DATE: April 17, 2025 ORDER Entitlement to an earlier effective date of February 18, 2021, and no earlier, for the grant of a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt, from February 18, 2021, within one year of the Veteran's December 13, 2021 increased rating claim for his service-connected PTSD, it was factually ascertainable that a TDIU was established. CONCLUSION OF LAW Giving the Veteran the benefit of the doubt, the criteria for an effective date of February 18, 2021 (earlier than the prior date of December 13, 2021), for the grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from September 2008 to August 2012, and subsequent Reserve service. In an April 2024 rating decision, the Agency of Original Jurisdiction (AOJ) granted TDIU, effective December 13, 2021 (effectively the date of receipt of the Veteran's deemed claim for an increased rating for his PTSD) and is the rating decision currently on appeal. The Board notes that given the earlier effective date claim before it, an in-depth look at the procedural history of the Veteran's claim is warranted and provided below. On December 13, 2021, the Veteran filed a claim for service connection for depression. In a February 2022 rating decision the AOJ treated that service connection claim as an increased rating claim and granted a 70 percent disability rating for PTSD (previously rated as adjustment disorder with anxiety), effective December 13, 2021. In March 2022, the Veteran filed a higher level review (HLR) request, generally noting the February 2022 rating decision and raising total disability rating based on individual unemployability (TDIU) for the PTSD claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2022 rating decision, the AOJ noted receipt of the March 2022 HLR request and found that duty to assist error had been identified, in pertinent part, for TDIU and PTSD. In a July 2022 rating decision, the AOJ noted that given the HLR development error, the Veteran's case was assigned to the supplemental review docket in April 2022. The AOJ, in pertinent part, continued the 70 percent rating for PTSD and deferred the TDIU issue. In an October 2022 rating decision, the AOJ denied TDIU. In December 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of TDIU issue most recently addressed in an October 2022 rating decision. In an April 2024 rating decision, the AOJ issued the supplemental claim decision on appeal, which essentially found that new and relevant evidence had been received and granted a TDIU effective February 18, 2021, based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the April 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 April 2024 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 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 earlier effective date of February 18, 2021, and no earlier, for the grant of a TDIU warranted. Per the Veteran's attorney, as argued in the April 2024 NOD, the effective date for TDIU should be "8/17/21 - the day after the Veteran's separation from service" and "[a]n inferred TDIU was raised by the record but was unadjudicated at that time." The Board initially notes that the Veteran's separation from service occurred August 16, 2012, NOT "8/17/21" as argued by the Veteran's attorney. The Board will, however, consider whether an effective date of August 17, 2012 (the actual day after separation from service) is warranted for TDIU, but as will be explained below, such an effective date is not warranted. Although the Veteran's attorney has claimed that a TDIU claim was effectively made but not adjudicated within a year of the Veteran's August 2012 separation from service, a review of the claims file does not support such a claim. As noted above, in an April 2024 rating decision, the AOJ granted TDIU, effective December 13, 2021 - the date of receipt of the perceived increased rating claim for PTSD. The Veteran's attorney appears to be arguing for that application of the day after service based on 38 U.S.C.S. § 5110(b)(1), the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. Thus, for the application of an effective date for the day after service for the grant of service connection benefits (presumedly the grant of service connection for an acquired psychiatric disorder), the question becomes whether a claim for a TDIU was received within 1 year after the Veteran's separation from service, to include one raised by an implied claim for unemployability under Rice. In other words, the Veteran's attorney appears to argue that when the Veteran claimed service connection for an acquired psychiatric disorder in August 2012, the matter of the Veteran's entitlement to a TDIU due to the acquired psychiatric disorder, was a component of the claim for service connection. The Board finds that there was no unadjudicated claim for a TDIU prior to December 13, 2021. This includes consideration of one year following the August 2012 separation from service and to include as part of the initial August 2012 claim for service connection for an acquired psychiatric disorder. Prior to his August 2012 separation from service, the Veteran filed multiple claims for service connection. In his application, he claimed service connection for tinnitus, low back strain, right wrist trauma, bilateral ankle laxity, acid reflux, and residuals of traumatic brain injury (TBI) noting residuals including irritability. In an October 2012 rating decision, the AOJ granted service connection for an adjustment disorder with anxiety (50 percent), a right wrist disability, a lumbar strain, tinnitus, and gastrointestinal reflux disease (GERD) (each with a separate 10 percent rating); the AOJ also denied service connection for Traumatic brain injury (TBI) and the ankles. The Veteran had a combined 70 percent rating. The Veteran did not file a notice of disagreement with any of those determinations. In developing the Veteran's service connection claims from the October 2012 rating decision, none of the evidence of record, to include the Veteran's own statements, indicated that the Veteran was unemployable due to his service connected disabilities. Indeed, VA examinations generally did not indicate that the Veteran's claimed symptoms would have made him unable to work. The August 2012 TBI VA examination (the Veteran was not in receipt of service connection for TBI at that time) reported that he had subjective symptoms that did not interfere with work, instrumental activities of daily living, or relationships. The August 2012 psychiatric VA examination found only occasional occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. At that time, the Veteran reported he was planning to attend community college and then a four year college, with a major in civil engineering. Based on such reports of future plans, the Veteran himself does not appear to have considered himself to be unemployable due to his claimed service-connected disabilities at the time of that VA examination. The other August 2012 VA examinations similarly did not indicate an inability to work. The VA examiner found no impact on ability to work due to GERD and the ankle. For the wrist, he should avoid heavy lifting and carrying, push-ups, and pull-ups. For the back, he was advised to avoid heavy lifting and carrying and frequent bending and stooping. Even with these findings of limitations for the wrist and back, there was no indication of an inability to work. Within the remainder of the year following the Veteran's August 2012 separation from service, the Veteran did not file any further claims for benefits. Indeed, the Board notes that in 2014, the Veteran appears to have taken part in Reserve drills, indicating he did not believe himself unable to perform duties associated with those drills. He also remained in the Reserves until 2016. Furthermore, following service, per his school transcript, the Veteran took part in college classes (as he had previously indicated he had planned) starting in the fall of 2012 to the fall of 2017. In an April 2015 VA medical record, he reported that he had not worked since discharge due to going to school full-time. The Board thus finds that at no time within a year of his August 2012 separation from service did the Veteran file a claim for a TDIU, believed that he was unemployable (given the evidence of record), and that there was no indication of record that the Veteran was unemployable due to his service-connected disabilities. As there was no unadjudicated claim for a TDIU within a year following the Veteran's separation from service, the Board will consider the effective date of an award based on a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later. The exception being that in a claim for increase, an effective date of an award may be granted for up to a year prior to the date of claim if it is factually ascertainable that an increase in disability had occurred at such time. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). The Board finds that at no time prior to December 13, 2021 did the Veteran file an increased rating claim for his service-connected acquired psychiatric disorder or other already service-connected disabilities. Indeed, the only actions taken prior to December 13, 2021 for the then service-connected disabilities was VA attempting to have the Veteran attend VA examinations for his acquired psychiatric disorder. Of note, the Veteran did not attend these examinations, and the AOJ proposed decreasing his rating for his service-connected acquired psychiatric disorder due to his not attending his scheduled VA examinations or otherwise not responding to VA. On December 13, 2021, VA received the Veteran's first claim regarding his service-connected acquired psychiatric disorder since his separation from service. The Board notes that since the initial grants of service connection for his disabilities to December 13, 2021, the Veteran was in receipt of combined 70 percent rating and thus met the minimum rating criteria for TDIU. TDIU may be awarded when a veteran's schedular rating for service-connected disabilities is less than total when the veteran is found to be unable to secure or follow substantially gainful employment as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more service-connected disabilities where at least one of those disabilities is rated at 40 percent or more and the veteran's combined disability rating is 70 percent or more. 38 C.F.R. § 4.16(a). Here, the appeal period before the Board begins on December 13, 2021, the date VA received the Veteran's increased rating claim for his service-connected acquired psychiatric disorder (later characterized as PTSD). As described in the Introduction, this claim resulted in the Rice TDIU claim with adjudication of the increased rating claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Subsequently, the question before the Board is whether it was "factually ascertainable" that the Veteran's disability worsened within the one-year period before receipt of the December 21, 2018 claim. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The Board will thus consider the 1 year period prior to the December 13, 2021 claim to determine if it was "factually ascertainable" that the Veteran's disability worsened within the one-year period before receipt of the December 13, 2021 claim. For the period from December 13, 2020 to December 13, 2021, VA medical records are generally silent as to any complaints of, or treatment for, the service-connected acquired psychiatric disorder/PTSD during that 1 year period. The Board does notes, however, that in a letter received on February 18, 2021 the Veteran provided a lay statement regarding his struggle to re-enter society and to work due to his service-connected acquired psychiatric disorder/PTSD. Giving the Veteran the benefit of the doubt, the Board finds that such a record provided factually ascertainable evidence that the Veteran's disability had worsened as of that February 18, 2021 date. The Board notes that this is the only evidence of record from December 13, 2020 to December 13, 2021 indicative of the Veteran's worsening symptoms. In summary, the Board thus finds that giving the Veteran the benefit of the doubt, an earlier effective date of February 18, 2021 is possible as it was factually ascertainable that his PTSD had worsened since that date, within one year of the December 13, 2021 increased rating claim. An earlier effective date of February 18, 2021, and no earlier, for the grant of a TDIU is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.