Citation Nr: A26009707 Decision Date: 02/03/26 Archive Date: 02/03/26 DOCKET NO. 250819-578071 DATE: February 3, 2026 ORDER Entitlement to an effective date prior to April 22, 2024, for the grant of individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's implied claim for TDIU stemming from his December 2013 increased rating claim for posttraumatic stress disorder (PTSD) was implicitly denied in a July 2014 rating decision which the Veteran did not appeal and which became final. 2. The Veteran's implied claim for TDIU stemming from a November 2017 proposed rating reduction for PTSD and bilateral hearing loss was implicitly denied in a November 2018 rating decision which the Veteran did not appeal and which became final. 3. On March 7, 2023, the Veteran filed a VA Form 26-4555 Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation; on June 6, 2023, a rating decision denied entitlement to specially adapted housing. 4. On April 22, 2024, the Veteran filed a VA Form 21-526EZ Fully Developed Claim seeking service connection and increased ratings for various disabilities. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to April 22, 2024, for the grant of TDIU have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Navy from October 1969 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to a TDIU effective April 22, 2024. In the August 2025 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 2025 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review in August 2025. 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. 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. Generally, the Board may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. 38 C.F.R. § 20.202(c)(2) allows appellants to switch AMA dockets by completing and submitting a new VA Form 10182 within 60 days from when the Board receives the original VA Form 10182, or 1 year from the date the AOJ mails notice of the decision on appeal, whichever is later, unless (1) an appellant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, or (2) the appellant or representative has requested a waiver of the ability to request to switch dockets during this timeframe. Williams v. McDonough, 37 Vet. App. 305 (2024). On November 6, 2025, the Veteran submitted a signed waiver of time to select a different Board review option and requested that the Board review his appeal as soon as possible. The Board finds this request waived the appellant's ability to request a docket switch, and the Board may issue a decision on the matter at this time. 1. Entitlement to an effective date prior to April 22, 2024, for the grant of TDIU The Veteran contends that the effective date of his TDIU award should be December 12, 2023 or August 13, 2014. See August 19, 2025 VA Form 10182. The Veteran asserts that the record reasonably raised the issue of TDIU on December 12, 2023 and August 13, 2014 and that VA's failure to assign TDIU from either of those earlier dates constitutes legal error. Id. 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 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 therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. 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 an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once raised, either expressly or implicitly, a claim generally remains pending until it is finally adjudicated in a rating decision or Board decision or until the claimant could reasonably recognize that the claim was adjudicated. See 38 C.F.R. § 3.160(c); Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). The implicit denial rule indicates that under certain circumstances, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision." See Munro v. Shinseki, 616 F.3d 1293, 1296 (Fed. Cir. 2010) (citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009)). The implicit denial rule applies to both formal and informal claims. Id. at 1297. The U.S. Court of Appeals for Veterans Claims (CAVC) established a four-factor test to determine whether a claim was implicitly denied: (1) the specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication, i.e., whether the decision that adjudicated an implicitly-denied claim used language that could reasonably be understood as denying that claim; (3) the timing of the claims; and (4) whether the claimant was represented. Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010). A decision awarding a disability rating less than 100 percent "generally provides notice as to how the Secretary has rated a claimant's condition and serves as a final decision, if unappealed, with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU." Locklear v. Shinseki, 24 Vet. App. 311, 316 (2011). If a decision that implicitly denied a claim becomes final, the claimant cannot obtain an effective date based on that decision unless he collaterally and successfully challenges that decision by an appropriate application to revise based on clear and unmistakable error (CUE). See Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). Based upon a review of the evidence, and for the reasons expressed below, the Board finds that the currently assigned effective date of April 22, 2024, is the earliest effective date legally assignable for the award of TDIU. The Veteran filed claim for increased disability for his PTSD on December 12, 2013. See December 12, 2013 VA Form 21-52EZ Fully Developed Claim. In a July 2014 examination for PTSD, the examiner noted that the Veteran had retired because of a heart attack, that while working, the Veteran had been written up several times for frequent conflicts with his supervisors, and that he occasionally missed time at work due to depressed mood. The examiner noted symptoms including impaired memory, impaired judgment, difficulty establishing and maintaining effective work relationships, difficulty adapting to stressful circumstances including work or a work-like setting, disturbances of motivation and mood, suspiciousness, impaired impulse control, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living. The examiner noted the Veteran was quick to anger, that he had no friends and tends to isolate himself, and that he has been physically violent in the past. The examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, but not total occupational and social impairment. The Board finds that this implicitly raised the issue of TDIU during the pendency of his PTSD increased rating claim. Considering the Cogburn factors, the Board finds that there was implicit denial of TDIU in the July 2014 rating decision that increased the Veteran's PTSD rating to 70 percent. First, regarding specificity or relatedness of the claims, the Veteran's claim for an increased rating for PTSD directly overlaps the claim for TDIU. The rating criteria for PTSD and other mental disorders specifically address occupational impairment. Second, regarding specificity of the adjudication, the July 2014 rating decision specifically cited the July 2014 examination and indicated why a higher, 100 percent disability evaluation was not warranted. Third, the timing of the claims, the implied TDIU claim was raised during the pendency of the underlying increased rating claim. Fourth, regarding representation, the Veteran was represented by a Veteran Service Organization (VSO) familiar with claims for TDIU. The Board finds that the July 2014 rating decision was an implied denial of TDIU. The Veteran did not appeal this decision, and it became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a), 20.1103. A November 2017 rating decision proposed to reduce the Veteran's PTSD and bilateral hearing loss disability ratings. In an October 2017 examination, the Veteran reported that he stopped working in 2015 and was unable to return to work following a stroke. The Veteran reported that he enjoyed the solitary nature of working for the United States Postal Service but also got along well with colleagues and supervisors. The Veteran reported that his PTSD symptoms had worsened. The Veteran reported easy agitation, irritation, frustration, easy provocation to anger, isolation from others, hypervigilance, paranoia, and distrust of others. October 2017 VA treatment records indicate that the Veteran had difficulty with anger towards coworkers and hadn't worked since 2011 after a heart attack. See October 23, 2017 Mental Health Outpatient Note. The Board finds this evidence implicitly raised the issue of TDIU during the pendency of the proposed reduction of his PTSD rating. Considering the Cogburn factors, the Board finds that there was implicit denial of TDIU in the November 2018 rating decision that continued his 70 percent disability rating for PTSD. First, regarding specificity or relatedness of the claims, the proposed reduction for the PTSD rating directly overlaps the claim for TDIU. The rating criteria for PTSD and other mental disorders specifically address occupational impairment. Second, regarding specificity of the adjudication, the November 2018 rating decision specifically cited the October 2017 examination and VA treatment records and indicated why a higher, 100 percent disability evaluation was not warranted. Third, the timing of the claims, the implied TDIU claim was raised during the pendency of the proposed rating reduction. Fourth, regarding representation, the Veteran was represented by a Veteran Service Organization (VSO) familiar with claims for TDIU. The Board finds that the November 2018 rating decision was an implied denial of TDIU. The Veteran did not appeal this decision, and it became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a), 20.1103. On March 7, 2023, the Veteran filed a claim for specially adapted housing. See March 7, 2023 VA Form 26-4555 Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation. The RO denied the claim in a June 2023 rating decision. According to Rice, TDIU "involves an attempt to obtain an appropriate rating for a disability or disabilities." 22 Vet. App. at 453-54. The purpose of specially adapted housing is to assist in buying, building, or changing the permanent home of an eligible servicemember. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. A claim for specially adapted housing does not "involve an attempt to obtain an appropriate rating for a disability or disabilities." Rice, 22 Vet. App. at 453-54. Accordingly, this claim did not implicitly raise the issue of TDIU. The appeal stream currently before the Board began on April 22, 2024, when he filed a VA Form 21-526EZ Fully Developed Claim seeking service connection and increased ratings for various disabilities. The current effective date corresponds to the date of receipt of this claim. The Board finds there is no basis under the general effective date regulations for an effective date earlier than April 22, 2024, for the award of individual unemployability. As noted above, the effective date of an award shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. 3.400. Thus, governing law and regulation provide that the proper effective date in this case may be no earlier than the date of receipt of the claim. Consequently, the earliest possible effective date for the grant of individual unemployability is April 22, 2024, and the claim is denied. The Board notes that if the Veteran wishes to seek an effective date for his TDIU based on either of his requested dates, December 12, 2013, or August 13, 2014, he may consider collaterally challenging the July 2014 rating decision in an appropriate application to revise that decision based on CUE. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) (an earlier effective date claim and a claim for CUE are different, mutually exclusive routes to determine an effective date). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talarico, Anne F. 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.