Case A26036804

S. KIM · 2026 · Case ID: A26036804

GRANTED

Summary

The veteran, who served from August 1968 to August 1972, appeals the assignment of effective dates for several granted service-connected conditions and for a grant of Total Disability based on Individual Unemployability (TDIU). The veteran sought earlier effective dates for service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, and slurred speech due to myasthenia gravis. The Board reviewed the evidence, including the veteran's initial claim filed on July 16, 2019, and subsequent filings. The Board found that the July 16, 2019 claim, though initially filed on an incorrect form, demonstrated clear intent to file for myasthenia gravis and its manifestations, and that the veteran's prompt response to VA's instructions supported an Intent to File. The Board determined that the manifestations claimed were part and parcel of the myasthenia gravis claim. Consequently, the Board granted earlier effective dates of July 16, 2019, for these conditions. Regarding the TDIU claim, the Board found that while not explicitly claimed on July 16, 2019, it was reasonably raised by the record prior to the August 2, 2019 supplemental claim. The Board granted an effective date of July 16, 2019, for the TDIU, noting that the veteran's service-connected disabilities met the criteria for TDIU from that date. The Board found that an earlier effective date for TDIU was not factually ascertainable.

Rationale

Claim implicitly part of myasthenia gravis claim; Intent to file established for myasthenia gravis; Granted effective date of July 16, 2019

Special Benefit

TDIU

Docket No.

251017-601121

Full Decision Text

Citation Nr: A26036804
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 251017-601121
DATE: April 21, 2026

ORDER

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for chewing difficulty due to myasthenia gravis is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for voiding dysfunction due to myasthenia gravis is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve) is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve) is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for drooped eyelids due to myasthenia gravis is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for slurred speech due to myasthenia gravis is granted.

Entitlement to an effective date of July 16, 2019, but no earlier, for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. July 16, 2019 is the date of receipt of the Veteran's claim for chewing difficulty due to myasthenia gravis.

2. July 16, 2019 is the date of receipt of the Veteran's claim for voiding dysfunction due to myasthenia gravis.

3. July 16, 2019 is the date of receipt of the Veteran's claim for weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve).

4. July 16, 2019 is the date of receipt of the Veteran's claim for weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve).

5. July 16, 2019 is the date of receipt of the Veteran's claim for drooped eyelids due to myasthenia gravis.

6. July 16, 2019 is the date of receipt of the Veteran's claim for slurred speech due to myasthenia gravis.

7. July 16, 2019 is the earliest date a claim for TDIU was received. The evidence persuasively weighs against finding that it was factually ascertainable that the severity of the Veteran's service-connected disabilities increased to preclude substantially gainful employment within the year prior to the date of the claim.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for chewing difficulty due to myasthenia gravis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

2. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for voiding dysfunction due to myasthenia gravis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

3. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

4. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R
myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

5. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for drooped eyelids due to myasthenia gravis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

6. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for slurred speech due to myasthenia gravis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5110; 38 C.F.R. § 3.400.

7. The criteria for entitlement to an effective date of July 16, 2019, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(o), 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from August 1968 to August 1972.

A rating decision was issued in February 2025, which, in relevant part, granted service connection for radiculopathy of the left lower extremity, sciatic nerve with an evaluation of 10 percent effective September 17, 2019, radiculopathy of the right lower extremity, sciatic nerve with an evaluation of 10 percent effective September 17, 2019, and entitlement to a TDIU effective March 23, 2020.

A rating decision was issued in March 2025, which, in relevant part, granted service connection for chewing difficulty due to myasthenia gravis with a 30 percent evaluation effective August 2, 2019, voiding dysfunction due to myasthenia gravis with a 20 percent evaluation effective August 2, 2019 and an evaluation of 40 percent effective January 6, 2025, increased the evaluation of weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve) from 10 percent disabling to 20 percent effective August 2, 2019, increased the evaluation of weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve) from 10 percent disabling to 20 percent effective August 2, 2019, granted service connection for drooped eyelids due to myasthenia gravis with a 20 percent evaluation effective August 2, 2019 and slurred speech due to myasthenia gravis with a 10 percent evaluation effective August 2, 2019, and granted a new effective date of August 2, 2019 for the grant of a TDIU.

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Direct Review option. Thus, the Board may only consider the evidence of record at the time of the March 2025 rating decision. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted during the period after the AOJ issued the March 2025 decision. Id.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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
submitted during the period after the AOJ issued the March 2025 decision. Id.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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.

This appeal has been advanced on the Board's docket pursuant to 38C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Lay Evidence

Relevant to all claims on appeal, in correspondence received in October 2025, the Veteran's attorney wrote that the Veteran requested an effective date of July 2019. He wrote, "[The Veteran] filed a 526 then that should have been treated as an Intent to File since it was the incorrect form to file at that time."

1. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for chewing difficulty due to myasthenia gravis

2. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for voiding dysfunction due to myasthenia gravis

3. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve)

4. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve)

5. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for drooped eyelids due to myasthenia gravis

6. Entitlement to an effective date of July 16, 2019, but no earlier, for the award of service connection for slurred speech due to myasthenia gravis

For claims of entitlement to service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is filed within one year of discharge; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).

With regard to the date of entitlement, the term "date entitlement arose" is the date when the claimant met the requirements for the benefits sought, on a facts-found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before she actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). The date entitlement arose is not the date that VA receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35.

The Veteran seeks entitlement to earlier effective dates for the awards of service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, and slurred speech due to myasthenia gravis. For the reasons set forth below, the Board finds that earlier effective dates of service connection are warranted for these claims.

Here, the Veteran separated from service in August 1972. The Board has carefully reviewed the Veteran's records and finds no submission received within
chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, and slurred speech due to myasthenia gravis. For the reasons set forth below, the Board finds that earlier effective dates of service connection are warranted for these claims.

Here, the Veteran separated from service in August 1972. The Board has carefully reviewed the Veteran's records and finds no submission received within one year of that date that can be construed as a claim for service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, or slurred speech due to myasthenia gravis. Neither the Veteran nor his attorney have identified a specific submission as a potential earlier claim within one year of discharge from service. Therefore, the Board finds there is no evidence of a claim within one year of discharge.

Therefore, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).

In this case, the Veteran filed his initial claim for service connection for myasthenia gravis on August 19, 2015. Thereafter, a rating decision was issued in October 2015, which, in relevant part, denied service connection for systemic myasthenia gravis. The Veteran did not appeal this denial and new and material evidence was not received within one year of the denial; therefore, it became final in the Legacy system. Thereafter, on July 16, 2019, the Veteran filed a VA 21-526EZ, Fully Developed Claim (Compensation) for the claim for service connection for myasthenia gravis. In response, VA sent the Veteran a letter on July 25, 2019 stating that they received the Veteran's claim for myasthenia gravis but that VA regulations required him to file the request on the proper form. Thereafter, on August 2, 2019, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim. While the Board acknowledges that the July 16, 2019 claim for service connection for myasthenia gravis was on the incorrect form, the Veteran quickly responded to VA's instruction to resubmit using the VA Form 20-0995, Decision Review Request: Supplemental Claim. Under the facts of this case, given the clear intent of the Veteran to file the claim for myasthenia gravis, and his prompt response to the instruction from VA, the Board finds that the July 16, 2019 filing amounts to an Intent to File.

While chewing difficulty, voiding dysfunction, weakness and radiculopathy of the left lower extremity (sciatic nerve), weakness and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids, and slurred speech were not explicitly claimed in the July 16, 2019 claim, the Board finds that these claims are part and parcel of the claim for myasthenia gravis as they are all due to myasthenia gravis. Here, the March 2025 rating decision terminated the 30 percent evaluation of myasthenia gravis and assigned separate evaluations based on each identified complication effective August 2, 2019, namely chewing difficulty, voiding dysfunction, weakness and radiculopathy of the left lower extremity (sciatic nerve), weakness and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids, and slurred speech. Therefore, these manifestations of myasthenia gravis are considered to have been claimed implicitly in the July 16, 2019 claim. The Board accepts July 16, 2019 as the date of receipt of the Veteran's initial claim and as the appropriate effective date for the Veteran's claims of entitlement to service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right
lower extremity (sciatic nerve), drooped eyelids, and slurred speech. Therefore, these manifestations of myasthenia gravis are considered to have been claimed implicitly in the July 16, 2019 claim. The Board accepts July 16, 2019 as the date of receipt of the Veteran's initial claim and as the appropriate effective date for the Veteran's claims of entitlement to service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, and slurred speech due to myasthenia gravis.

Even if entitlement arose prior to July 16, 2019, the date of claim is still the later of the two dates and therefore the correct effective date.

An effective date of July 16, 2019, but no earlier, is granted for the awards of service connection for chewing difficulty due to myasthenia gravis, voiding dysfunction due to myasthenia gravis, weakness due to myasthenia gravis and radiculopathy of the left lower extremity (sciatic nerve), weakness due to myasthenia gravis and radiculopathy of the right lower extremity (sciatic nerve), drooped eyelids due to myasthenia gravis, and slurred speech due to myasthenia gravis. To this extent, the claims are granted.

7. Entitlement to an effective date of July 16, 2019, but no earlier, for the grant of a TDIU

The Veteran also contends that an effective date earlier than August 2, 2019 for the grant of a TDIU is warranted.

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. §§ 3.400(o), 3.2500(h)(1). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007).

The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, an exception is available when the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400(o)(2).

A claim of entitlement to a TDIU is part and parcel of an underlying increased rating claim, when raised during the open appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In this case, the Board finds an effective date of July 16, 2019, but no earlier, for the grant of a TDIU is warranted.

To qualify for a TDIU, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a).

From July 16, 2019, the Veteran was service-connected for obstructive sleep apnea associated with coronary artery disease (CAD) with stable angina, rated 50 percent from March 23, 2020, voiding dysfunction due to myasthenia gravis rated 20 percent from July 16, 2019, coronary artery disease (CAD) with stable angina rated 30 percent from December 4, 2013, chewing difficulties due to myasthenia gravis rated 30 percent from July 16, 2019, drooped eyelids due to myasthenia gravis rated 20 percent from July 16, 2019, weakness due to myasthenia gravis and right lower extremity radiculopathy (sciatic nerve) rated 20 percent from July 16, 2019, weakness due to myasthenia gravis and left lower extremity radiculopathy (sciatic nerve) rated
myasthenia gravis rated 20 percent from July 16, 2019, coronary artery disease (CAD) with stable angina rated 30 percent from December 4, 2013, chewing difficulties due to myasthenia gravis rated 30 percent from July 16, 2019, drooped eyelids due to myasthenia gravis rated 20 percent from July 16, 2019, weakness due to myasthenia gravis and right lower extremity radiculopathy (sciatic nerve) rated 20 percent from July 16, 2019, weakness due to myasthenia gravis and left lower extremity radiculopathy (sciatic nerve) rated 20 percent from July 16, 2019, tinnitus rated 10 percent from January 6, 2015, slurred speech due to myasthenia gravis rated 10 percent from July 16, 2019, status post L3-L4 posterior fusion rated 10 percent from March 23, 2020, a surgical scar of the midline sternum associated with slurred speech due to myasthenia gravis rated 0 percent from August 2, 2019, and hypertension rated 0 percent from August 10, 2022.

As provided above, under Rice, 22 Vet. App. at 447, a claim for TDIU is part and parcel of an underlying rating claim if employability is expressly raised by a Veteran or reasonably raised by the record during the pendency of the claim. In this case, the Board finds that TDIU was reasonably raised by the record prior to the August 2, 2019 supplemental claim. In this case, as provided above, the Veteran filed his initial claim for service connection for myasthenia gravis on August 19, 2015. Thereafter, a rating decision was issued in October 2015, which, in relevant part, denied service connection for systemic myasthenia gravis. The Veteran did not appeal this denial and new and material evidence was not received within one year of the denial; therefore, it became final in the Legacy system. Thereafter, on July 16, 2019, the Veteran filed a VA 21-526EZ, Fully Developed Claim (Compensation) for the claim for service connection for myasthenia gravis. In response, VA sent the Veteran a letter on July 25, 2019 stating that they received the Veteran's claim for myasthenia gravis but that VA regulations required him to file the request on the proper form. Thereafter, on August 2, 2019, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim. While the Board acknowledges that the July 16, 2019 claim for service connection for myasthenia gravis was on the incorrect form, the Veteran quickly responded to VA's instruction to resubmit using the VA Form 20-0995, Decision Review Request: Supplemental Claim. Under the facts of this case, given the clear intent of the Veteran to file the claim for myasthenia gravis, and his prompt response to the instruction from VA, the Board finds that the July 16, 2019 filing amounts to an Intent to File.

While entitlement to a TDIU was not explicitly claimed in the July 16, 2019 claim, the Board finds that this claim is part and parcel of the claim for myasthenia gravis. Here, the March 2025 rating decision granted entitlement to an earlier effective date of August 2, 2019 for the grant of a TDIU because schedular criteria were met from that date and the claim was associated with myasthenia gravis because myasthenia gravis was considered severe enough to prevent gainful employment. The Board accepts July 16, 2019 as the date of receipt of the Veteran's initial claim and as the appropriate effective date for the Veteran's claim of entitlement to a TDIU.

The Board finds that it is not factually ascertainable that the severity of the Veteran's service-connected disabilities increased to preclude substantially gainful employment within one year of the date he filed his claim. There is no evidence relevant to the issue of entitlement to a TDIU in the year prior to the July 16, 2019 claim. Thus, the Board finds that an effective date prior to July 16, 2019 is not warranted as it is not factually ascertainable that the severity of the Veteran's service-connected disabilities increased to preclude substantially gainful employment within one year of the date he filed his claim.

Even if entitlement arose prior to July 16, 2019, the date of claim is still the later of the two dates
it is not factually ascertainable that the severity of the Veteran's service-connected disabilities increased to preclude substantially gainful employment within one year of the date he filed his claim. There is no evidence relevant to the issue of entitlement to a TDIU in the year prior to the July 16, 2019 claim. Thus, the Board finds that an effective date prior to July 16, 2019 is not warranted as it is not factually ascertainable that the severity of the Veteran's service-connected disabilities increased to preclude substantially gainful employment within one year of the date he filed his claim.

Even if entitlement arose prior to July 16, 2019, the date of claim is still the later of the two dates and therefore the correct effective date.

An effective date of July 16, 2019, but no earlier, is granted for entitlement to a TDIU. To this extent, the claim is granted.

S. Kim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K.M.

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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