Case A26039703

Summary

The veteran, who served in the United States Air Force from July 1967 to March 1982, appeals the denial of a Total Disability based on Individual Unemployability (TDIU) claim. The veteran sought TDIU based on service-connected PTSD and headaches, asserting unemployability since May 2014. The Board reviewed the procedural history, noting the earliest possible TDIU effective date was December 27, 2022, based on the claim for migraine headaches. The veteran has a high school education and previously worked as a telecommunications specialist, retiring in 2014. A November 2020 VA PTSD examination noted occupational and social impairment, with some memory issues and difficulty with concentration. A January 2023 VA headaches examination found that migraines impacted his ability to work, requiring frequent breaks and rest. The Board found the evidence, including the VA examinations and the veteran's testimony regarding functional limitations, persuasive. Giving the veteran the benefit of the doubt, the Board concluded that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities starting December 27, 2022. Therefore, TDIU was granted from that date.

Rationale

TDIU granted from December 27, 2022; Benefit of the doubt resolved in veteran's favor; Service-connected disabilities rendered veteran unable to secure substantially gainful occupation

Full Decision Text

Citation Nr: A26039703
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 260211-630153
DATE: April 28, 2026

ORDER

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from December 27, 2022, subject to the law and regulations governing the award of monetary benefits.  

FINDING OF FACT

It is at least as likely as not that service-connected disabilities rendered the Veteran incapable of securing or following a substantially gainful occupation from December 27, 2022. 

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an award of a TDIU have been met from December 27, 2022.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from July 1967 to March 1982.  His decorations include the Air Force Commendation Medal, the National Defense Service Medal, and the Air Force Good Conduct Medal with 2 Oak Leaf Clusters.

The original rating decision underlying the present appeal was entered in November 2024 by a Department of Veterans Affairs (VA) Regional Office following the Veteran's submission of a VA Form 21-8940 in August 2024.  Following a further denial on Higher-Level Review in February 2025, the Veteran timely appealed to the Board of Veterans' Appeals (Board) by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in February 2026, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ).  38 C.F.R. §§ 20.201, 20.202(b)(1).

Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the November 2024 AOJ rating decision.  38 C.F.R. § 20.301.  The Board cannot consider evidence submitted after that decision was promulgated.

By way of background, a July 2024 rating decision granted a 50 percent rating for migraines, effective December 27, 2022. Thereafter, in August 2024, the Veteran submitted the VA Form 21-8940, which identified migraines, among other disabilities, as causing unemployability. Because a request for TDIU is not a standalone claim but an attempt to get a higher rating, a VA Form 21-8940 may serve as a supplemental claim when filed after VA has already denied higher ratings for the disabilities at issue. See Chisholm v. Collins, 38 Vet. App. 140 (2025). Accordingly, here, the VA Form 21-8940 serves as a supplemental claim as to the July 2024 rating decision and therefore a TDIU may be granted as early as December 27, 2022.

A TDIU is granted from December 27, 2022.

The Veteran contends that he is entitled to a TDIU prior to the date that the 100 percent schedular rating is effective which, in this case, is August 11, 2023.  He has argued, through his representative, that the issue of his entitlement to a TDIU is not moot prior to that date, and that he was rendered unable to secure or follow a substantially gainful occupation due to service-connected disability during the period prior to August 11, 2023. 

He contends that "TDIU is warranted based on service-connected PTSD alone as early as May 21, 2020, or, alternatively, based on the combined occupational impact of PTSD and service-connected headaches no later than December 2022." As described above, based on the procedural history of this case, the earliest date a TDIU may be assigned is December 27, 2022. 

A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In determining whether a Veteran can secure and follow a substantially gainful occupation, the term "unable to secure and follow a substantially gainful occupation" in § 4.16 is defined to include two components: one economic and one noneconomic.  See Ray v. Wilkie, 31 Vet.
DIU may be assigned is December 27, 2022. 

A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In determining whether a Veteran can secure and follow a substantially gainful occupation, the term "unable to secure and follow a substantially gainful occupation" in § 4.16 is defined to include two components: one economic and one noneconomic.  See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The economic component refers to an occupation earning more than marginal income (outside of a protected environment), determined by the U.S. Department of Commerce as the poverty threshold for one person.  Id.  The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue; provided that discussion of any factor is only necessary if the evidence raises it.  Id.

The United States Court of Appeals for Veterans Claims (Court) has held that TDIU is not "a separate claim for benefits" but is rather another pathway "to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation."  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Court has also explained that "[t]he distinction between [an increased rating and an initial claim] is important for purposes of assigning an effective date for an award of compensation."  Id. at 454.  This is because '[d]ifferent statutory and regulatory provisions apply depending on whether the claim is an original claim or one for increased compensation."  Id.  "And effective dates, just as at the time of Rice, are governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400; these essentially tie the effective date for an initial rating claim to the latter of the date of claim or when entitlement arose.  But for an increased rating claim, the effective date can go back a year before the date of the claim if it is ascertainable that the increase occurred within that year.  38 C.F.R. § 3.400(o)(2)."  Phillips v. McDonough, 37 Vet. App. 394, 400 (2024).

Under the Appeals Modernization Act (AMA), continuous pursuit of a claim or issue can be achieved by timely and properly filing an appropriate review option, generally within one year of an AOJ or Board decision.  38 C.F.R. § 3.2500(c); Calhoun v. McDonough, 37 Vet. App. 96, 102-03 (2024).  If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, as opposed to the date the most recent request for review was received.  38 C.F.R. § 3.2500(h)(1); 38 C.F.R. §§ 3.400, 3.2500(c).

By way of history, on December 27, 2022, the Veteran filed a VA Form 21-526EZ, seeking entitlement to service connection for chronic headaches.  In July 2023, the Veteran submitted a VA Form 20-0995 (Decision Review Request: Supplemental Claim), again seeking entitlement to service connection for headaches.

In a December 2023 rating decision, the AOJ granted service connection for migraine headaches and assigned a 50 percent rating, effective from July 17, 2023 (the date of receipt of the Veteran's Intent To File A Claim For Compensation and/or Pension).  The AOJ continued the 70 percent rating for PTSD. 

In March 2024, the Veteran filed a VA Form 20-0996 (Request for Higher Level Review) seeking, in pertinent part, seeking an earlier effective date for the grant of service connection for migraine headaches.  In a July 2024 rating decision, the AOJ granted an earlier effective date of December 27, 2022 (the date of receipt of the Veteran's service connection claim), for the grant of service connection for migraine headaches.

In August 2024, the Veteran filed a VA Form 21-8940 (Veteran's Application for Increased Compensation
 of receipt of the Veteran's Intent To File A Claim For Compensation and/or Pension).  The AOJ continued the 70 percent rating for PTSD. 

In March 2024, the Veteran filed a VA Form 20-0996 (Request for Higher Level Review) seeking, in pertinent part, seeking an earlier effective date for the grant of service connection for migraine headaches.  In a July 2024 rating decision, the AOJ granted an earlier effective date of December 27, 2022 (the date of receipt of the Veteran's service connection claim), for the grant of service connection for migraine headaches.

In August 2024, the Veteran filed a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).  He asserted that his service-connected PTSD, migraines, and headaches had prevented him from securing or following any substantially gainful occupation since May 2014.

In a November 2024 decision, the AOJ assigned a 100 percent rating for bilateral hearing loss, effective August 20, 2024; continued a 50 percent rating for migraine headaches; continued a 70 percent rating for PTSD; granted special monthly compensation based on deafness of both ears; and granted basic eligibility to Dependents' Educational Assistance based on permanent and total disability from August 20, 2024.  The AOJ determined that the Veteran's TDIU claim was moot because his service-connected disabilities combined to 100 percent, effective and found that entitlement to TDIU was moot, effective August 20, 2024.

In February 2025, the Veteran submitted a VA Form 20-0996 (Decision Review Request: Supplemental Claim) in which he disagreed with the November 2024 decision which found that the issue of the Veteran's entitlement to a TDIU was moot.

In the present case, at the time of the November 2024 rating decision on appeal, the Veteran was service-connected for bilateral hearing loss, evaluated as 30 percent disabling from August 6, 2018, and 100 percent from August 20, 2024; PTSD, evaluated as 70 percent disabling from May 21, 2020; migraines evaluated as 50 percent disabling from December 27, 2022; and tinnitus evaluated as 10 percent from August 6, 2018.  His combined rating was 90 percent from December 27, 2022, and 100 percent from August 20, 2024.  A January 2025 rating decision granted service connection for a low back disability, radiculopathy of the lower extremities, and bilateral ankle disabilities, each effective August 11, 2023.  By virtue of those grants of service connection the Veteran now has a combined 100 rating from August 11, 2023.  

A TDIU claim is a claim for increased compensation.  As such, the effective date rules for increased compensation apply to TDIU claims.  See Hurd v. West, 13 Vet. App. 449 (2000).  The United States Court of Appeals for Veterans Claims (Court) noted in Hazan v. Gober, 10 Vet. App. 511 (1992), that 38 U.S.C. § 5110(b)(2) requires a review of all the evidence of record (not just the evidence not previously considered) in order to ascertain the earliest possible effective date.  Determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable."  Hazan, 10 Vet. App. at 521. 

Alternatively, where a claim for a TDIU stems from an initial grant of service connection and an initial disability rating assignment, as is the case here with regard to the Veteran's migraine headache disability, the effective date rules for service connection apply by analogy.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (explaining that a TDIU claim may be an initial claim or a claim for an increased rating).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-281 (2011) (a claim for TDIU received by VA within one year of an underlying grant of service connection for a disability was considered part of an appeal for a higher initial rating).

In this case the Veteran has requested an award of TDIU based solely on his service-connected PTSD as early as May 21, 2020, the date of the grant of service connection for PTSD or based on the combined occupational impact of his
 Vet. App. 447, 453-54 (2009) (explaining that a TDIU claim may be an initial claim or a claim for an increased rating).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-281 (2011) (a claim for TDIU received by VA within one year of an underlying grant of service connection for a disability was considered part of an appeal for a higher initial rating).

In this case the Veteran has requested an award of TDIU based solely on his service-connected PTSD as early as May 21, 2020, the date of the grant of service connection for PTSD or based on the combined occupational impact of his service-connected headaches and PTSD, from December 27, 2022.  

Based on the procedural history outlined above, the Board does not find that there has been continuous pursuit of the Veteran's PTSD claim dating back to May 21, 2020, to warrant the grant of TDIU effective from May 21, 2020.  However, the Board does find that there has been continuous pursuit of the Veteran's migraine headache claim dating back to December 27, 2022.  The question for the Board's consideration is whether a TDIU is warranted for all or any portion of the period on appeal from December 27, 2022.

Turning to the evidence, the Veteran's VA Forms 21-8940 reflect that he has a high school education.  He had not undergone any training since becoming too disabled to work in May 2014.

In November 2020 the Veteran underwent a VA PTSD examination at which time the examiner stated that the Veteran's PTSD was best summarized by occupational and social impairment with reduced reliability and productivity.  For VA rating purposes his symptoms included disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting.  The Veteran stated that he worked at VA for about 30 years as a telecommunications specialist and occasionally missed time at work due to his lack of sleep, but otherwise showed up for work on time.  He occasionally got agitated with co-workers due to his symptoms and was spoken to a few times by his supervisor, but was never formally written up.  He occasionally had some difficulty getting his work done on time due to his symptoms and retired in 2014.  He worked part-time security for about a year, but was not working at the time of the examination and felt that he would have trouble working due to worsening cognitive issues.  He also stated that he had some memory issues while working at VA.

In January 2023 the Veteran underwent a VA headaches examination.  He complained of headaches that were predominantly localized to the right side of head and occurred approximately 3-4 times per week and lasted hours to a couple of days.  The examiner opined that the Veteran's headaches impacted his ability to work.  He reported difficulty concentrating at work in the past due to migraine headaches.  He stated that he needed to take frequent breaks at work and rest in a quiet environment until migraine headache subsided.

(Continued on the next page)

?

The final determination with respect to a veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function.  Nevertheless, the findings reflected in the November 2020 and January 2023 VA examination reports are highly probative.  Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran's description of the functional effects of his service-connected impairments as they relate to his level of education and prior occupational experience, the Board is persuaded that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities beginning December 27, 2022.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 C.F.R.§ 4.3.  A TDIU from December 27, 2022, is therefore granted.

 

 

M. Schlickenmaier

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Adams, 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.