Case A26029811

A. ODYA-WEIS · 2026 · Case ID: A26029811

DENIED

Summary

The veteran, who served from February 2018 to January 2019, appeals the denial of an earlier effective date for a Total Disability based on Individual Unemployability (TDIU) award. The veteran claimed entitlement to an earlier effective date for TDIU, asserting that his service-connected mental health condition prevented him from maintaining gainful employment well before the May 19, 2022, claim date. The Board reviewed the evidence, including the veteran's employment history, private treatment records from September 2019, a June 2022 VA mental health examination, and a July 2022 lay statement from the veteran's wife. The Board found that the veteran's employment difficulties and symptoms impacting his ability to work predated the one-year lookback period prior to the May 19, 2022, claim date. Evidence indicated fragmented employment and difficulties maintaining jobs due to mental health symptoms as far back as 2019. The Board concluded that it was not factually ascertainable that the veteran's disability worsened within the relevant one-year period to warrant an earlier effective date. Therefore, the Board denied entitlement to an earlier effective date for the TDIU award.

Rationale

Evidence indicates employment difficulties predated the one-year lookback period.; Worsening of disability within the one-year period prior to May 19, 2022, was not factually ascertainable.; Prior claims for psychiatric disability became final as they were not continuously pursued.

Special Benefit

TDIU

Docket No.

221028-293826

Full Decision Text

Citation Nr: A26029811
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 221028-293826
DATE: April 1, 2026

ORDER

Entitlement to an effective date earlier than May 19, 2022 for the award of a total disability rating based on individual unemployability (TDIU) is denied.

FINDING OF FACT

As of May 19, 2022 there were no prior pending claims for the Veteran's service-connected psychiatric disability, and it is not factually ascertainable that there was an increase in severity in the one-year period prior to May 19, 2022.

CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than May 19, 2022 for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.400, 3.2500.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 2018 to January 2019.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2022 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

In the October 2022 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 September 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. Evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Here, evidence was added to the claims file after the September 2022 rating decision, which is during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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.

In a November 2024 decision, the Board denied entitlement to an earlier effective date for the award of a TDIU. The Veteran appealed the November 2024 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2025, the Court vacated the Board's decision and remanded the claim for readjudication in compliance with the Joint Motion for Remand.

Entitlement to an effective date earlier than May 19, 2022 for the award of a TDIU.

The Veteran contends that he is entitled to an earlier effective date for the award of a TDIU because he has "been unable to maintain gainful employment way before May 19, 2022." See October 2022 VA Form 10182.

The effective date of an award based on an initial claim of compensation is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). This includes original claims, a claim reopened after final disallowance, or a claim for increase (as described under the legacy appeal system) and initial or supplemental claims (as described under the AMA). Id.

The effective date of a claim for an increased evaluation "will be the date of receipt of the claim or the date entitlement arose." 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was factually ascertainable that an increase in disability has occurred if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was factually ascertainable that the disorder had increased in severity during that time.

Under the
.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was factually ascertainable that an increase in disability has occurred if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was factually ascertainable that the disorder had increased in severity during that time.

Under the AMA appeals framework, generally, the effective date will be fixed in accordance with the date of receipt of the initial claim or the date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options within one year of the issuance of a decision. 38 C.F.R. § 3.2500(c). The review options include a Board appeal via a VA Form 10182 and a supplemental claim. In other words, the effective date associated with the initial claim is protected by the veteran filing a Board appeal or supplemental claim with new and relevant evidence.

Date of Claim

On May 19, 2022 VA received the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran stated that his service-connected mental health prevented him from securing or following a substantially gainful occupation. In a September 2022 rating decision, the AOJ granted entitlement to a TDIU effective May 19, 2022, the date of receipt of the claim. Therefore, there would need to be a prior pending claim for an increased rating for the Veteran's psychiatric disability to find that there is an earlier date of claim prior to May 19, 2022.

In October 2019 the Veteran submitted a claim for service connection for an acquired psychiatric disorder. In a February 2020 rating decision, the AOJ granted service connection for panic disorder effective January 26, 2019. In another February 2020 rating decision, the AOJ granted service connection for panic disorder with generalized anxiety disorder effective January 26, 2019. The Veteran did not seek review of the February 2020 rating decisions, and the May 2022 VA Form 21-8940 was filed more than one year after the February 2020 rating decisions. Thus, there was no continuous pursuit of the claims, and the February 2020 rating decisions became final. 38 C.F.R. § 3.2500 (c).

Accordingly, an effective date stemming from the January 2019 claims may not be assigned.

One-Year Lookback Period

Because the date of claim for this matter is May 19, 2022, an earlier effective date may not be assigned unless it is factually ascertainable that there was worsening within the one-year period prior to that date. The increase in disability must be within the one-year period prior to the date of claim, rather than prior to the one-year period in order to obtain an effective date earlier than the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 983-984 (Fed. Cir. 2010).

In the May 2022 VA Form 21-8940, the Veteran reported that December 1, 2019 was the date his disability affected his full-time employment, the date he last worked full time, and the date he became too disabled to work. He reported that he was employed at a car wash from March 2019 to April 2019. He was employed in construction from October 2019 to December 2019 and he was employed as a general laborer from December 2021 to January 2022.

The Veteran's employer indicated that he resigned from his position as a retailer in February 2019. He left his position in construction in March 2020 due to FMLA parental leave. Lastly, the Veteran's employer reported that he left his position as a general laborer in January 2022 for unknown reasons - he simply did not return for a new assignment. See July 2022, June 2022, and May 2022 VA Forms 21-4192.

In a September 2019 private treatment record, the Veteran reported that he was "fired" from two jobs for not showing up. He reported that he would "overthink things" and talk himself from going to work. The examiner noted that the Veteran's panic attacks would have moderate interference with his ability to work.

In a June 2022 VA mental disorders examination
construction in March 2020 due to FMLA parental leave. Lastly, the Veteran's employer reported that he left his position as a general laborer in January 2022 for unknown reasons - he simply did not return for a new assignment. See July 2022, June 2022, and May 2022 VA Forms 21-4192.

In a June 2022 VA mental disorders examination, the Veteran's wife reported that the Veteran's memory had gotten worse 6-7 months prior to the examination and that he would forget that he was cooking something at least once a week. The examiner opined that this would impact his ability to function in a work environment for work projects requiring full mental/memory attention. The examiner opined that the Veteran's slow thinking process observed during the examination would cause significant problems in a work environment if required to follow directions and protocols and remember them.

In a July 2022 lay statement, the Veteran's wife reported that the prior year and a half had been by far the most difficult time of their lives. She reported that the Veteran was switching from job to job and he was repetitively let go or asked to quit due to his lack of attendance. She reported that he began to struggle to remember what his schedule was and he would have panic attacks that led him to no call no showing. She reported that he worked for a couple of temp agencies in hopes that their increased flexibility would be more suitable with his disability. However, the results were the same because he would take a job daily and not make it to the site. This led to loss of contracts, so the temp agency was unable to employ him further. She reported that it had recently got to the point where the Veteran would leave for work and return home with no memory of why he left or where he was supposed to go.

Based on the above, the Board finds that it is not factually ascertainable that the Veteran's disability worsened in the year prior to May 19, 2022 such that he was unable to secure and follow substantially gainful occupation. The evidence of record indicates that the Veteran's mental health disability impacted his ability to work prior to the one-year period prior to May 19, 2022. A review of the Veteran's employment history shows fragmented employment, with one-to-two-month periods of employment as far back as 2019. See May 2022 VA Form 21-8940. A September 2019 private treatment record indicates that the Veteran had difficulty maintaining employment due to his mental health condition. He was let go from two jobs and would not show up to work. The clinician also noted that the Veteran's panic attacks had moderate interference with his ability to work. Further, the July 2022 lay statement from the Veteran's wife indicates that the Veteran's mental health symptoms affected his ability to work prior to the one-year period prior to receipt of the May 2022 VA Form 21-8940. Indeed, the Veteran's wife reported that the "past year and a half" had been the most difficult for them, indicating the Veteran had difficulties maintaining employment before then.

The Board acknowledges the Veteran's wife's statement that his memory had gotten worse in the six to seven months prior to the June 2022 VA Examination. However, as noted above, the evidence of record indicates that the Veteran's psychiatric symptoms had worsened in severity as to prevent him from securing or maintaining employment well before the one-year period prior to May 19, 2022, and not beginning in the one-year period prior. The Veteran asserted that he has "been unable to maintain gainful employment way before May 19, 2022," and that he became too disabled to work due to his mental health disability in 2019, with a brief one-month period of employment thereafter. See October 2022 VA Form 10182 and May 2022 VA Form 21-8940. The Board finds these statements supported by the evidence of record.

To be assigned an effective date in the one-year period prior to May 19, 2022, the worsening of the disability must have happened within that period. Here, the evidence of record reflects that the Veteran's psychiatric disability impacted his ability to work prior to May 19, 2022. Thus, he is not entitled to an effective date during the one-year period prior to May 19, 2022.

(Continued on the next page)

The date of the claim is May 19, 2022 and it is not factually ascertain
2022 VA Form 10182 and May 2022 VA Form 21-8940. The Board finds these statements supported by the evidence of record.

(Continued on the next page)

The date of the claim is May 19, 2022 and it is not factually ascertainable that the Veteran's disability worsened during the one-year period prior to May 19, 2022. Therefore, entitlement to an earlier effective date for the award of a TDIU is not warranted. The claim is denied.

A. Odya-Weis

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Dennis, Associate 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.

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