Citation Nr: A24000905
Decision Date: 01/08/24	Archive Date: 01/08/24

DOCKET NO. 200226-72119
DATE: January 8, 2024

ORDER

Entitlement to an effective date earlier than October 24, 2019, for the grant of a total disability rating based on individual unemployability (TDIU) is denied. 

Entitlement to an effective date earlier than October 24, 2019, for the grant of special monthly compensation based on statutory housebound status (SMC) is denied. 

FINDINGS OF FACT

1. Prior to October 24, 2019, there was no formal, informal, or inferred claim for a TDIU. 

2. In a March 2017 rating decision, the Agency of Original Jurisdiction granted service connection for PTSD and other disorders; the Veteran did not file an appeal as to the effective date or the evaluation of her PTSD. 

3. No new and material evidence was submitted within one year of the March 2017 rating decision. 

4. The issue of a TDIU was not reasonably raised by the record prior to October 24, 2019. 

5. The evidence does not demonstrate a factually ascertainable increase of symptomatology in the one-year prior to October 24, 2019, the date of receipt of the Veteran's claim for a TDIU.

6. Prior to October 24, 2019, the Veteran did not have a single disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more sufficient to warrant the award of SMC based on statutory housebound status.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than October 24, 2019 for the grant of a TDIU are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16.

2. The criteria for an effective date earlier than October 24, 2019 for the grant of SMC based on statutory housebound status are not met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office. 

Historically, the Veteran filed a claim for service connection for PTSD in 2013. Service connection was denied in a May 2014 rating decision. The Veteran perfected a timely appeal, and the Board remanded the matter in October 2016. A March 2017 rating decision granted service connection for PTSD and established a 70 percent disability evaluation, effective March 18, 2013. This rating decision also granted service connection for migraine headaches with a 10 percent disability evaluation. Both the grant of service connection for PTSD and migraine headaches were effective March 18, 2013. The contemporaneous codesheet states that "IU not inferred as the evidence of records [sic] shows the Veteran is employed." 

The Veteran filed a timely appeal of the effective date and assigned evaluation for her migraine headache disorder, but did not appeal the effective date or assigned evaluation for PTSD. A September 2017 Board decision denied an earlier effective date for a migraine headache disorder, but granted an increased disability evaluation. 

The Veteran filed a claim for SMC at the S-1 level in July 2018, which was denied in a November 2018 rating decision. The Veteran filed a supplemental claim in October 2019, stating that her SMC claim was not a claim for aid and attendance, but was "predicated on single-body orthopedic system equaling 100% & a separate aggregate rating of > [greater than] 60%" [sic]. 

The Veteran filed a formal claim for a TDIU in October 2019. The January 2020 rating decision on appeal established entitlement to a TDIU based solely on the Veteran's PTSD. This decision also established entitlement to SMC at the housebound rate, based on a single disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more. Both grants were effective October 24, 2019, the date of the Veteran's claim for a TDIU. 

The Veteran submitted a timely VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) and requested review of the January 2020 rating decision. The Veteran specified that the grants of TDIU and SMC should have been effective February 10, 2017. In February 2020, the AOJ issued an HLR rating decision, which considered the evidence of record at the time of the January 2020 decision, and denied entitlement to earlier effective dates. 

In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held in April 2021. A transcript of the hearing is of record. An August 2021 Board decision denied entitlement to an earlier effective date. In May 2023, the Court of Appeals for Veterans Claims (CAVC or Court) set aside the August 2021 Board decision and remanded this matter for readjudication. 

Given the foregoing, the Board's review is limited to the evidence of record at the time of the issuance of the decision on appeal (January 17, 2020) and any additional evidence submitted within 90 days of the Board hearing date (April 6, 2021). 38 C.F.R. § 20.302. The Board cannot consider (1) evidence submitted during the period after the issuance of the decision on appeal and before the date of the Board hearing (January 18, 2020 through April 5, 2021), or (2) evidence submitted more than 90 days after the Board hearing date (July 5, 2021). 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 claim. 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.

The Veteran contends that earlier effective dates for the grants of a TDIU and SMC are warranted. Specifically, the Veteran contends that the appropriate effective date for these entitlements is March 18, 2013-the date of her initial claim for service connection for PTSD. As the award of SMC is contingent upon the grant of a TDIU based on a single disability, the effective date for SMC is controlled by the effective date of the grant of a TDIU. Thus, the Board will focus on the issue of entitlement to an earlier effective date for a TDIU. 

The Veteran may be entitled to an earlier effective date for a TDIU if there was a pending, unadjudicated claim for a TDIU prior to October 24, 2019. Such a claim could arise in three different scenarios: (1) if there was an informal claim for a TDIU prior to March 24, 2015, a formal claim for a TDIU prior to October 24, 2019, or an inferred claim for a TDIU; (2) if the March 2017 rating decision is not final and a TDIU was reasonably raised by the record; or (3) if, within the one year prior to the October 24, 2019 claim for a TDIU, there was a factually ascertainable increase in disability that impacted the Veteran's ability to secure and follow a substantially gainful occupation. 

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). 

Prior to March 24, 2015, a "claim" was defined as "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). An informal claim included "[a]ny communication or action, indicating an intent to apply for one or more benefits..." 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefits 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 from 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). The essential elements of such an informal claim are (1) an intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 

The communication of a claim, whether formal or informal, must be in writing. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that an informal claim must be written because "[t]o permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of the veterans benefits programs." See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the particular claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014); 38 C.F.R. § 3.155. The amendments are only effective for claims and appeals filed on or after March 24, 2015.

A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. As a result, a claim for entitlement to TDIU is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). Under the Legacy appeal system, the exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).

New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

VA has a duty to "develop a claim 'to its optimum'" and "determine all potential claims raised by the evidence." Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Based on that premise, the Federal Circuit has held "that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider" entitlement to TDIU. Id. at 1380. "[U]nder Roberson, a claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). However, neither Roberson nor Comer dictate that entitlement to TDIU is reasonably raised unless the record contains evidence of unemployability, either submitted by the veteran or developed by VA. Bankhead v. Shulkin, 29 Vet. App. 10, 24 (2017). 

To be clear, entitlement to TDIU "does not require proving 100 percent unemployability." Roberson, 251 F.3d at 1380. An inability to keep a job might suggest unemployability, even if the veteran was able to avoid gaps in employment by finding new jobs. See 38 C.F.R. § 4.16(b) ("It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." 

TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability has occurred within one year from the date of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). However, if an increase in severity occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (rejecting an effective date of one year prior to the date of a formal TDIU where the evidence shows an increase occurred before the one year period prior to the claim, holding in relevant part, "[T]he plain language of [section] 5110(b)(2) [now codified in section 5110(b)(3)]... 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.").

Turning to the factual record, between 1993 and 2006, the Veteran worked as a customer service representative for various employers. In 2006, she began to work as an esthetician and independent make-up artist. From 2010 to 2012, she worked as a customer service representative and a skin care consultant. In 2012, she began work as a licensed esthetician and customer service representative at Massage Envy. The Board notes that there is contradictory evidence regarding the dates of the Veteran's employment at Massage Envy. Although the Veteran indicated in her August 2017 Rehabilitation Needs Inventory that she worked for Massage Envy between July 2012 and January 2016 and again from January 2017 to September 2017, VA treatment records document that she was fired from Massage Envy in September 2016. Between October 2016 and February 2017, the Veteran worked as a makeup artist and esthetician at Ulta. From February to August 2017, the Veteran worked as a document sorter for Federal Express. Although the Veteran may have had gaps in her employment, her resume shows that since 2002 she has continuously worked as a freelance make-up artist, skin care consultant, and esthetician. 

The Veteran reports that she became too disabled to work in 2017 and the evidence documents that her last period of employment ended in August 2017. The Veteran engaged in vocational rehabilitation training in 2018 and was declared job ready on September 7, 2018. In December 2018, the Veteran indicated that she was interested in receiving job placement assistance. In January 2019, the Veteran requested that job placement assistance be placed on hold for a few months due to a family emergency that required travel. March and April 2019 VA letters note that the Veteran requested the closure of her vocational rehabilitation case, stating that the Veteran "was not seeking employment at this time due to providing care to a sick relative." 

March 2012 private treatment records document that the Veteran's work environment was "extremely stressful," and required medication to manage the stress. August 2013 VA treatment records note that the Veteran was working, but that PTSD symptoms of irritability and moodiness impacted relationships with her colleagues. In February 2014, the Veteran reported that she was working for Massage Envy for five hours per day, but that she was trying to branch out on her own. VA medical records contain multiple complaints of moodiness and irritability severe enough to impact her work relationships. See, e.g. August 2013 note, October 2013 note, December 2013 note, September 2016 note. 

An April 2014 VA examination noted that the Veteran had been fired from multiple jobs due to irritability and angry outbursts resulting from flashbacks and PTSD triggers. The Veteran also reported that she had difficulty relating to clients, particularly males. A February 2017 VA examination noted that the Veteran was only working part-time as an esthetician and that she struggled to perform her job duties due to headaches and musculoskeletal pain. A March 2017 VA examination noted "significant problems" with employment related to her PTSD symptoms, including being terminated from 80 percent of her jobs and calling in sick 50 percent of the time. A November 2019 VA examination also noted reports of difficulty working with others, reduced reliability, and reduced productivity. 

An October 2014 VA 21-4138 - Statement in Support of Claim states requested service connection for a variety of disorders, including migraine headaches. The Veteran stated "There are times I have to leave work due to the severity of the pain. My supervisor has had to excude [sic] me from work for 2-3 days at a time." 

A January 2016 Financial Status Report indicated that the Veteran was only able to work part-time due to her PTSD symptoms. In a November 2016 VA Form 21-4138, the Veteran reported that:

I've gone from working full-time to part-time to not being able to work at all. At present, I lack full-time employment with significant limitations due to my service-connected issues with emphasis on my mental health. Limitations on my employment have significantly impacted my earnings capacity.

In August 2017, the Veteran applied for vocational rehabilitation. An August 2017 Rehabilitation Needs Inventory documents a variety of part-time positions. A December 2017 Counseling Record - Narrative Report (Counseling Record) indicated that the Veteran worked as a document sorter between February 2017 and August 2017, when she resigned. The report notes that the Veteran's disability factors did not preclude her from returning or maintaining her former employment. Even though the report concluded that the Veteran's PTSD, headaches, and musculoskeletal disabilities caused functional limitations on employability, it also noted that:

She has not overcome her impairment to employability as she does not have the proper training in a field where she will be able to focus on the med side and not the upselling portion of her job as an esthetician. The upselling portion is what causes her stress and anxiety as relatable to her PTSD.

A January 2018 Rehabilitation Plan specified that the Veteran would receive a certificate or licensure in medical spa make-up artistry. The anticipated duration of this training was March through May 2018, with an additional period of time to become job ready and search for employment. 

An April 2019 VA letter indicates that the Veteran successfully completed a certificate/licensure for luxury and medical spa training and that she had reached the maximum rehabilitation gain and had the "necessary skills to work in suitable and related employment because of VR&E services." The letter also noted that the Veteran had not completed the employment services portion of her rehabilitation plan, as she was unable to seek work due to caring for a relative. 

The Veteran filed a formal claim for a TDIU on October 24, 2019. 

After careful review, the Board finds that there was no informal claim for a TDIU prior to March 24, 2015. Although the Veteran reported work impairments due to her symptoms, there is no indication that she was underemployed, unemployed, or working in a protected work environment. When discussing her limited work hours, the Veteran discussed her attempts to branch out on her own, which does not indicate that she was unemployable. 

Work impairments were noted in her VA treatment records, but under 38 C.F.R. § 3.157, which was in effect prior to March 24, 2015, a report of examination or hospitalization by VA or uniformed services can constitute an informal claim, but only when a formal claim for pension or compensation has been previously disallowed for the reason that the disability is not compensable in degree. Accordingly, the notations of work impairments in the VA treatment records cannot constitute an informal claim under 38 C.F.R. § 3.157 because the requirements were not met here. 

The Board also finds that there was no formal claim for a TDIU prior to October 24, 2019. Although there are various documents after March 24, 2015 showing that the Veteran was struggling with employment, underemployed, or unemployed, none of these communications were submitted on the proper form and thus are not valid claims for a TDIU. Likewise, the Veteran's July 2018 and October 2019 applications for SMC cannot be considered applications for a TDIU as it was not submitted on the proper form. 

The Board has considered the possibility of an inferred claim for a TDIU pursuant to Rice. In doing so, the Board acknowledges that TDIU is part of a claim for increased compensation. However, the Veteran did not appeal the initial evaluation for her PTSD and has never filed a claim for an increased evaluation. Thus there is no basis for an inferred TDIU claim. See Rice, 22 Vet. App. at 453-54. 

Turning to the finality of the March 2017 rating decision, the rating decision granted entitlement to service connection for both PTSD and migraine headaches. However, the May 2017 Notice of Disagreement addressed only the issues of the assigned effective date and disability evaluation for a migraine headache disorder. Thus, there was no appeal as to the effective date or evaluation assigned for PTSD (the sole disability for which TDIU was granted at a later date). 

However, additional evidence was associated with the claims file within one year of the March 2017 rating decision. As noted by the Court, the Board has not yet determined whether that evidence constitutes new and material evidence in the Legacy appellate system. If this evidence is new and material, it would abate the finality of the March 2017 rating decision. See 38 C.F.R. §§ 3.156(b), 3.400(q); Beraud v. McDonald, 766 F.3d 1401, 1407 (Fed. Cir. 2014); Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015); Rice, 22 Vet. App. at 454. However, "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011).

The Board finds that even though the December 2017 Counseling Record is new evidence that was not considered in the March 2017 rating decision, it is not material evidence, as it does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating a claim for a TDIU. There is ample evidence in the record prior to the March 2017 rating decision that the Veteran's PTSD symptomatology interfered with her duties as an esthetician and that she struggled with the stress of her position, particularly upselling products. This is the same information contained in the December 2017 Counseling Record. In other words, this new evidence is duplicative of the evidence of record at the time of the March 2017 rating decision, and is not material evidence. 

Furthermore, the December 2017 Counseling Record documents that the Veteran was not seeking a TDIU but was rather seeking vocational training. Moreover, the record shows that the Veteran's vocational goal was feasible, and she took a break in the program to help with a sick relative. Thus, this document does not raise a reasonably possibility of substantiating a claim for a TDIU. 

Therefore, the Board finds that the information contained in the December 2017 report is redundant of information in the claims file at the time of the March 2017 rating decision, does not raise a reasonable possibility of substantiating the Veteran's claim, and accordingly does not constitute material evidence sufficient to vitiate the finality of the March 2017 rating decision.

Assuming, arguendo, that the December 2017 Counseling Record is both new and material to the Veteran's TDIU claim, the Board finds that the issue of a TDIU was not reasonably raised by the record prior to the October 24, 2019 application for a TDIU.

The Board has considered the Federal Circuit's decision in Comer and the Court's holding in Bankhead, 29 Vet. App. 10 (2017). Both Comer and Bankhead addressed whether the issue of a TDIU had been raised by the record. Although both Comer and Bankhead involved claims for an increased disability evaluation, as noted above that is not the procedural posture of this case. Regardless, these cases are illustrative of what evidence is sufficient to raise the issue of a TDIU. 

In Comer, the Veteran presented evidence that he had not been employed full-time since 1975 and there was "extensive record evidence" of employment difficulties. The Federal Circuit held that the veteran's "claim for an increased rating and an earlier effective date for his PTSD benefits, coupled with the persuasive and pervasive evidence in the record demonstrating his unemployability, was sufficient to raise the issue of his entitlement to an earlier effective date for his TDIU award as well. Comer, 552 F.3d at 1368. 

The CAVC addressed a similar issue in Bankhead. In that case, the Veteran had a 22-year career with the same employer, but reported problems with coworkers that nearly resulted in fights, calling in sick frequently, lack of motivation to attend work, and isolation. Bankhead, 29 Vet. App. at 24. The Court noted that "[a]lthough those reported problems at work may reflect occupational impairment due to service-connected major depressive disorder, they do not suggest unemployability or otherwise indicate that a service-connected disability may have rendered the veteran unable to secure or follow a substantially gainful occupation." Id. 

The Board finds that this case is akin to that of Bankhead, in that there is evidence of occupational impairments, but these impairments do not suggest unemployability. Unlike the veteran in Comer, there is no extensive evidence of work impairments and no persuasive or pervasive evidence demonstrating unemployability. As such, the issue of a TDIU is not reasonably raised by the record.

The Board notes that Veteran was self-employed esthetician for 15 years, while also maintaining part-time employment. Thus, the evidence does not suggest that the Veteran's service connected disabilities rendered her unemployable-rather, it interfered with her employment-something recognized by her 70% PTSD rating already assigned for that timeframe. See 38 C.F.R. § 4.130 (compensating for "[o]ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood"). 

At most, the evidence of record, including leaving work early, inability to work well with others, anxiety, angry outbursts, and irritability, shows interference with employment. It certainly does not constitute "cogent" or "persuasive and pervasive" evidence of unemployability of the type illustrated by the veteran in Comer. Comer, 552 F.3d at 1367-68. 

Rather, the evidence of record shows that the Veteran was able to maintain employment, both as a business owner and an employee, over the course of 16 years and was able to successfully complete a vocational rehabilitation training course in 2018. The evidence also shows that the Veteran did not seek the return to work for personal reasons, rather than due to her service-connected disabilities. Thus, the Board cannot find that a TDIU was reasonably raised by the record.

Thus, the remaining question is whether there was a factually ascertainable increase in the Veteran's service-connected disabilities, in the one-year prior to her October 24, 2019 claim for a TDIU, that would impact her ability to obtain and follow a substantially gainful occupation. The factual record shows that the Veteran was engaged in part-time employment until August 2017, when she resigned from her position at FedEx. The Veteran was able to undergo successful vocational rehabilitation in 2018, but did not seek employment due to family responsibilities. Given the foregoing, it appears that the Veteran's unemployability has been either consistent since her last employment in 2017 or improved after her successful vocational rehabilitation training. Thus, the Board is unable to conclude that there was a factually ascertainable increase such that an earlier effective date is warranted. 

Having found that there was no formal, informal, or inferred claim for a TDIU prior to October 24, 2019, that new and material evidence was not submitted within one year of the March 2017 rating decision, that a TDIU was not reasonably raised by the record, and that there was no factually ascertainable increase in disability within one year prior to the October 24, 2019 claim for a TDIU, the Board finds no error of law or fact in the effective date assigned in the January 2020 rating decision. Thus, the appropriate effective date for a TDIU is October 24, 2019, the date of the Veteran's claim.

In the January 2020 rating decision on appeal, the Veteran was granted entitlement to SMC based on statutory housebound status, effective October 24, 2019, pursuant to 38 U.S.C. §1114(s)(1); 38 C.F.R. §3.350(i)(1). The Veteran has not alleged entitlement, and the record does not raise, the issue of entitlement to SMC benefits based on 38 C.F.R. §1114(s)(2); 38 C.F.R. §3.350(i)(2).

As of October 24, 2019, the Veteran has a single service-connected disability rated as total (TDIU for service-connected PTSD), and her other service-connected disabilities total 60 percent or greater. Prior to October 24, 2019, the Veteran did not meet the statutory requirements for SMC at the statutory housebound rate because she did not have a single service-connected disability rated as total. Thus, an earlier effective date for the grant of SMC is not warranted. 38 U.S.C. §1114(s)(1); 38 C.F.R. §3.350(i)(1).

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stricker, Katherine 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.