Citation Nr: 18139627
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 10-27 622
DATE:	September 28, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 1, 2006 is denied.
FINDINGS OF FACT
1. VA received the Veteran’s inferred claim for entitlement to a TDIU via an increased rating claim for a service connected disability on April 21, 2006.
2. The AOJ granted entitlement to TDIU effective April 21, 2006, the date the Veteran’s inferred claim for entitlement to a TDIU was received by VA.
3. There is no other statement or communication from the Veteran, or other document, prior to April 21, 2006 that constitutes a claim of entitlement to a TDIU. 
CONCLUSION OF LAW
The criteria for an effective date before April 21, 2006, for the award of service connection for a TDIU have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active service from March 1954 to April 1974.
In its May 2016 decision, the Board remanded this appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998).
At the time of the May 2016 remand, the issue concerned entitlement to a TDIU.  While the case was in remand status, entitlement to a TDIU was granted.  This case was returned to the Board on the theory that a portion of the original TDIU claim was not granted; the AOJ nevertheless recharacterized the matter as an effective date issue, rather than the issue of whether a TDIU is warranted for the period prior to April 21, 2006.  Normally, the Board would consider the grant of the TDIU to be a resolution of the entire claim, with the Veteran required to separately appeal what is actually a downstream element of the TDIU entitlement claim.  However, given that the AOJ misled the Veteran into believing that the earlier effective date matter is on appeal, and as it is possible, though strained, to interpret the matter as involving whether TDIU is warranted for an earlier period, the Board will accept jurisdiction over the earlier effective date for TDIU claim.
The Board notes, however, that in granting the TDIU claim, the AOJ also granted entitlement to Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35, with an assigned effective date of April 21, 2006.  The RO then included this in subsequent supplemental statements of the case.  This was error on the AOJ’s part, as DEA benefits are a separate benefit from TDIU, and as the Veteran has not expressed disagreement with that portion of the rating assigning an effective date for DEA benefits.  Thus, while the AOJ misled the Veteran and his representative on this issue as well, the Board simply has no jurisdiction over the matter in the absence of a notice of disagreement.  Consequently, the DEA matter is not before the Board.

Entitlement to a total disability rating based on individual unemployment (TDIU) prior to April 21, 2006.
The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2018).
A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2018). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p) (2018). “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). 
Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a).
While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are defined broadly to include “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1 (p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). That said, while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by the claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).
In this case, a December 2012 Board decision remanded the issue of entitlement to a TDIU as it found the issue of TDIU was raised during the appeal for a higher disability rating for Meniere’s disease. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Agency of Original Jurisdiction (AOJ) issued a December 2017 rating decision which granted entitlement to a TDIU effective January 11, 2012. A February 2018 rating decision granted an earlier effective date of April 21, 2006 for a TDIU. 
The Veteran asserts he is entitled to an earlier effective date prior to April 21, 2006 for a TDIU. Specifically, he asserts that he was unable to work beginning in January of 2001 as a result of his service connected Meniere’s syndrome.
Regarding receipt of the claim for an increased rating, the Board’s review of the record reflects the Veteran first filed a claim for an increased rating evaluation for Meniere’s syndrome via a VA Form 21-4138 which was dated March 27, 2006 and received by VA on April 21, 2006. The Board’s review of the record also reflects the Veteran first filed an application for a TDIU received by VA on September 6, 2006. 
The Board has considered whether any evidence of record prior to April 21, 2006 could serve as an informal claim to entitle the Veteran to an earlier effective date. In this regard, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA would constitute an informal claim. Such informal claim must identify the benefit sought. However, after reviewing the record, the Board concludes that there is no testimonial document submitted prior to April 21, 2006 that indicates intent to pursue a claim of entitlement to an increased rating for Meniere’s syndrome or a TDIU. The Veteran and his representative have not presented any additional argument for an earlier effective date for a TDIU or DEA benefits.
In sum, the presently assigned effective date of April 21, 2006 is appropriate and there is no basis for entitlement to a TDIU prior to that date. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim of entitlement to an earlier effective date for a TDIU must be denied.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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