Case A26039616

Summary

The veteran, who served from November 1968 to January 1993, appeals the effective date of a Total Disability based on Individual Unemployability (TDIU) rating. The Board previously granted TDIU in a June 2020 decision, assigning a November 19, 2014 effective date. The veteran contends that a TDIU rating should have been awarded earlier, specifically from February 1, 2010, when he stopped working due to his service-connected disabilities. The Board reviewed the evidence, including the veteran's November 2011 VA Form 21-4138, which indicated he was considering retirement due to his disabilities and raised the issue of unemployability. This claim for unemployability is considered part of his ongoing increased rating claims for allergic rhinitis and bilateral shoulder conditions. Citing relevant case law and regulations, the Board determined that the November 2011 correspondence, which raised the unemployability issue, was received within the one-year lookback period for the November 2010 increased rating claim for allergic rhinitis. Therefore, the Board found that a TDIU rating is warranted from the earlier effective date of February 1, 2010. The decision grants the earlier effective date for the TDIU rating.

Rationale

TDIU claim raised in November 2011 correspondence.; November 2011 claim within one-year lookback for November 2010 increased rating claim.; TDIU considered part and parcel of increased rating claims.

Full Decision Text

Citation Nr: A26039616
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 250911-585913
DATE: April 28, 2026

ORDER

An effective date of February 1, 2010, but no earlier, is granted for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) rating, subject to the regulations governing payment of monetary awards.

FINDING OF FACT

The Veteran's last day of employment was January 31, 2010 simultaneous to ongoing claims for increased ratings for service connected disabilities when a TDIU was raised by the record.

CONCLUSION OF LAW

An earlier effective date of February 1, 20210 is warranted for the award of a TDIU.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.340, 3.341, 3.400, 4.15, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1968 to January 1993.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2025 supplemental claim rating decision issued by a Regional Office (RO).  In the June 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on January 6, 2026 with the undersigned Veterans Law Judge; the transcript was added to the record.  Therefore, the Board may only consider the evidence of record at the time of the June 2026 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran (or representative) at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 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. 

A TDIU is granted from the earlier effective date of February 1, 2010.

The Veteran asserts that his TDIU  should be awarded from earlier than November 2014.  Specifically, the Veteran argues that a TDIU rating is warranted from at least 2010 when he stopped working.  See January 2026 Hearing Transcript.

Governing law states that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

A TDIU  may be assigned when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. See 38 U.S.C. § 5110(b)(3) (formerly (b)(2)); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010
DIU rating is considered part and parcel of the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. See 38 U.S.C. § 5110(b)(3) (formerly (b)(2)); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010) (reaffirming that the plain language of 38 C.F.R. § 5110(b)(2) only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim); Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007) (holding that a TDIU claim based on a condition that has already been service connected to be an increased-rating claim for the purpose of the application of 38 U.S.C. § 5110(b)(2); Hurd v. West, 13 Vet. App. 449, 451-52 (2000) (applying law governing increased-rating claims to the award of TDIU); Norris v, West, 12 Vet. App. 413, 420-22 (1999) (finding that TDIU "is in essence a claim for an increased rating" and applying the informal claim provisions of 38 C.F.R. § 3.157 to TDIU claims); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991) (holding that a "claim for unemployability compensation was an application for 'increased compensation' within the meaning of [38 U.S.C.] § [51]10(b)(2)").

By way of background, the Veteran was granted a TDIU in a June 2020 Board decision.  The AOJ implemented this in a June 2020 rating decision and assigned a November 19, 2014 effective date based on the date VA received the Veteran's claim for a TDIU.  The Veteran has appealed the effective date of the grant of a TDIU resulting in a Board remand and two subsequent rating decisions denying an earlier effective date.

It is not in dispute that the Veteran's last day of employment was January 31, 2020 (per the Veteran and confirmed by the Social Security Administration) due to his service connected disabilities.  See November 2014 VA Form 21-8940; January 2015 MTR - SSA.  However, what is in dispute is whether a claim for a TDIU was made in conjunction with the Veteran's appeals for a higher ratings for his service connected disabilities.  In this case, the Board recognizes that the Veteran's appeals for service connection and increased ratings have complicated procedural histories.  However, the evidence of record contains correspondence from the Veteran in which he states he is considering retirement due to his service-connected disabilities.  See November 2011 VA Form 21-4138.  This is the first documentation in which the issue of unemployability is raised.  At the time VA received the November 2011 VA Form 21-4138, the Veteran had ongoing claims for increased ratings for allergic rhinitis and both shoulders.  As such, the claim for a TDIU rating is considered part and parcel of the increased rating claims.  Rice, 22 Vet. App. 447 (2009).  The claim for an increased rating for allergic rhinitis was received by VA on November 15, 2010 which allows for a one-year lookback period.  Dalton, 21 Vet. App. 23, 32-34 (2007).  As such, the date of unemployability (February 1, 2010) is within this period.

Accordingly, a TDIU  is warranted from the earlier effective date of February 1, 2010. 

 

S. CHARLES NEILL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Dyer

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.