Citation Nr: A25041287 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240405-431909 DATE: May 6, 2025 ORDER Entitlement to an effective date of February 13, 2020, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is granted. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) effective February 13, 2020, is granted FINDINGS OF FACT 1. A final October 2017 agency of original jurisdiction (AOJ) rating decision granted entitlement to service connection for PTSD, and assigned an initial rating of 70 percent disabled effective January 11, 2017; by letter dated November 22, 2017, the Veteran clearly and unambiguously withdrew seeking the TDIU benefit. 2. The Veteran filed an application for service connection for gastroesophageal reflux disease (GERD) on February 13, 2020, and continuously pursued this compensation benefit while there was a pending TDIU claim based, in part, on GERD. 3. The Veteran has been unable obtain and maintain substantially gainful employment due to service-connected disability since the February 13, 2020, solely due to PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of February 13, 2020, for a TDIU rating have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157, 3.400, 20.1100. 2. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) effective February 13, 2020, have been met. 38 U.S.C. § 1114(s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to May 1998. The rating decision on appeal was issued in April 2023 by the AOJ; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In November 2023, the Veteran timely filed for a Higher Level Review (HLR). The March 2024 HLR decision found no error in the April 2023 AOJ decision. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 rating decision. 38?C.F.R. § 20.302. Notably, the Board has not considered evidence submitted subsequent to the April 2023 decision, including private medical records submitted in May 2023 and submissions related to the Veteran's pursuit of readiness and employment. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). A claim is defined 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). The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA subsequent to that date, the current regulations apply. At the outset, the Board notes that TDIU is deemed part and parcel of a claim for a higher rating for a service-connected disability. Rice v. Shinsheki, 22 Vet. App. 447 (2009). It is not a separate claim, but a rating option when a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability. Rice, 22 Vet. App. at 453-54. This is a rating option which may be present in more than one appeal stream before VA. Phillips v. McDonough, 37 Vet. App. 394 (2024). The Veteran has had multiple appeal streams on various issues before VA. The Veteran's attorney argues that the Veteran became eligible for consideration of a schedular TDIU rating based on a 70 percent rating assigned for service-connected PTSD on January 11, 2017, and that VA examinations in April and 2017 included evidence of unemployability related to prostrating headache attacks. In December 2022, the Veteran provided a medical opinion attributing his unemployability due to service-connected PTSD, migraine headaches, GERD and tinnitus. In a September 2017 rating decision, the AOJ awarded service connection for tinnitus, and assigned an effective date of January 11, 2017. By a letter dated September 17, 2017, the Veteran was notified of the rating decision and his appellate rights In an October 2017 rating decision, the AOJ granted entitlement to service connection for PTSD, and assigned an initial rating of 70 percent disabled effective January 11, 2017. By a letter dated October 26, 2017, the Veteran was notified of the rating decision and his appellate rights. On November 7, 2017, the Veteran filed a claim listing entitlement to a TDIU rating in November 2017. He did not identify a specific disability. In a subsequent November 22, 2017, statement, the Veteran clearly and unambiguously withdrew this claim, signing a statement stating, "I respectfully request to withdraw my claim for Individual Unemployability submitted 11/06/2017. I no longer wish to pursue this claim." On this date, he simultaneously filed an application for Vocational Rehabilitation benefits. Other than the November 2017 statement, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided for his tinnitus or PTSD claims. His clear and unambiguous withdrawal of appeal on November 22, 2017, operated as a withdrawal of the appeal stream for a higher initial rating for PTSD and tinnitus - including the rating options of entitlement to TDIU for either disability. Hence, the September and October rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The appeal stream for the initial rating for PTSD and tinnitus closed, and cannot constitute the basis for an earlier effective date of award for TDIU. Phillips, 37 Vet. App. 394 (2024). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. Under the AMA, an AMA appeal may come to the Board in three ways: (1) through a RAMP rating decision; (2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (3) an appeal of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) issued on or after February 19, 2019. 38 C.F.R. §§ 3.2400; 19.2(d). The Veteran's service-connected for GERD, erectile dysfunction, migraine headaches, and obstructive sleep apnea were all granted service connection effective February 13, 2020. The TDIU benefit may attach to these claims, but TDIU awarded pursuant to these disabilities cannot be awarded prior to the effective date of award for these claims. The Board finds that the TDIU rating option may extend to February 13, 2020, as the Veteran continuously pursued the initial rating for GERD. A January 2021 AOJ rating decision awarded service connection for GERD, and assigned an initial 10 percent rating effective February 13, 2020. By letter dated January 29, 2021, the Veteran was notified of this decision and his AMA administrative review options. Subsequently, the Veteran filed an application for a TDIU rating on December 19, 2022. In an April 2023 rating decision, the AOJ granted entitlement to a TDIU rating, effective the date of the Veteran's formal TDIU application. The Veteran has timely appealed the effective date of award assigned for TDIU. On January 20, 2022, the Veteran timely chose a supplemental claim as an administrative review option for the January 2021 AOJ decision which assigned an initial rating for GERD. A June 2022 AOJ rating decision continued a 10 percent initial rating for GERD. By letter dated June 30, 2022, the Veteran was notified of this decision and his AMA administrative review options. In July 2022, the Veteran timely chose a timely Higher Level review for the June 2022 denial of a higher rating for GERD. A September 2022 HLR denied a higher rating for GERD. By letter dated September 12, 2022, the Veteran was notified of this decision and his AMA administrative review options. In October 2022, the Veteran timely chose a timely Board appeal review for the September 2022 denial of a higher rating for GERD. The Board decided the GERD issue in December 2024. As of February 13, 2020, the Veteran was eligible for schedular consideration of a TDIU rating as he had a combined 90 percent rating. See 38 C.F.R. § 4.16(a). The April 2023 AOJ decision cited that the Veteran last worked in 2016, and found that his PTSD prevented him from obtaining and maintaining substantially gainful employment. His PTSD has been rated as 70 percent disabling since 2017, and the Board finds no appreciable worsening of disability during this time period. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has been unable to obtain and maintain substantially gainful employment effective to the date of the TDIU application stream for GERD effective February 13, 2020. The Veteran has an independent award of a 60 percent rating for GERD effective February 13, 2020. Thus, he is also entitled to SMC under 38 U.S.C. § 1114(s) effective February 13, 2020. . T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Howell, Chad 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.