Citation Nr: 18140714 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 18-18 708A DATE: October 5, 2018 ORDER Entitlement to an effective date prior to May 27, 2003, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is denied. Entitlement to Dependents’ Educational Assistance prior to May 27, 2003 is denied.   FINDINGS OF FACT 1. In a December 2001 rating decision, the Regional office (RO) granted entitlement to service connection for bronchial asthma, with a 60 percent rating as of December 14, 1989. 2. New and material evidence was not received by the VA pertaining to the rating assigned for bronchial asthma within one year of the December 2001 rating decision. 3. The Veteran did not then submit a claim, either formal or informal, for service connection for a TDIU or to eligibility for Dependents’ Education Assistance prior to May 27, 2003. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date for the award of a TDIU prior to May 27, 2003, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.156, 3.400, 4.16. 2. The criteria for an effective date prior to May 27, 2003, for the award of basic eligibility for Dependents’ Educational Assistance benefits have not been met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971 and from April 1979 to September 1982. This matter is on appeal from a February 2016 rating decision. The appeal has been advanced to the Board’s docket pursuant to 38 C.F.R § 20.900(c); 38 U.S.C. § 7107(a)(2). Effective Date The Veteran seeks an effective date earlier than May 27, 2003, for the award of a TDIU and Dependents’ Education Assistance. Generally, “the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of 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 application therefor.” 38 U.S.C. § 5110 (a); see 38 C.F.R. § 3.400. The effective date for an award based on a reopened claim shall be the “[d]ate of receipt of the claim or date entitlement arose, whichever is later, except as provided in § 20.1304(b)(1) of this chapter.” 38 C.F.R. § 3.400 (r). The determination of an effective date often turns on when a claim, informal or formal, was received by VA. 38 C.F.R. § 3.155 (a); see Edwards v. Peake, 22 Vet. App. 29, 31 (2008). Effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. For VA compensation purposes, a “claim” is defined as “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). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155 (a). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Additionally, prior to its repeal on March 24, 2015, 38 C.F.R. § 3.157 (b)(1) provided that once a formal claim for compensation has been allowed, receipt of a VA examination or hospitalization report will be accepted as an informal claim for increased benefits. See Pacheco v. Gibson, 27 Vet. App. 21, 24-30 (2014). A claim for a TDIU is not a freestanding claim; rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). The claim may be expressly raised (e.g., by filing a VA Form 21-8940) or “reasonably raised by the record,” and the claim may be filed as a component of either the initial claim or as a separate claim for an increase rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during adjudication of the issue of entitlement to service connection or during the appeal of the initial evaluation assigned, the issue is part of the underlying claim for an increased initial evaluation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Earlier effective date for entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) The Veteran asserts that he has been unemployed since 1988, and that he has service connection for his asthma, depression, and anxiety. The Veteran asserts that the effective date for a TDIU should be no later than December 14, 1989. He advised the VA that he has been considered disabled by the Social Security Administration since 1989. Having carefully reviewed the evidence, the Board finds that an effective date prior to May 27, 2003 for a TDIU is not warranted. In December 2001, the RO issued a rating decision granting service connection for bronchial asthma, with a 30 percent rating effective January 25, 1988 and a 60 percent assigned from December 14, 1989. No new and material evidence pertaining to bronchial asthma was received within a year of this decision, see 38 C.F.R. § 3.156 (b), and the Veteran did not appeal this decision; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has considered whether the Veteran’s claim for a TDIU was a part of the Veteran’s original claim for service connection for bronchial asthma. In connection with that claim, he submitted medical records, which documented his statements indicating that he could not work. These appeared, for instance, in June, July and September 1983 VA consultations, and April and June 1999 VA examinations. He gave like testimony at a June 2000 hearing testimony. This evidence raised the issue in connection with the underlying service connection claim. See, e.g., Rice, 22 Vet. App. at 453-54. However, this issue was implicitly denied in the December 2001 rating decision, which granted less than a 100 percent rating for the bronchial asthma. See Jones v. Shinseki, 619 F.3d 1368, 1372 (Fed. Cir. 2010); Cogburn v. McDonald, 809 F.3d 1232, 1235 (Fed. Cir. 2016); see also Murphy v. Shinseki, No. 07-3414, 2009 U.S. App. Vet. Claims LEXIS 1745, at *6 (Vet. App. Sep. 30, 2009) (nonprecedential) (discussing Ingram v. Nicholson, 21 Vet. App. 232, 248-49 (2007)). To this extent, the Veteran did not file new and material evidence within one year of the December 2001 rating decision. He filed medical records pertaining to a pending service connection claim for an unrelated disability. Within those medical records were additional statements from the Veteran indicating his inability to work due to the respiratory condition. There was also a reference to his application for Social Security disability benefits. Such evidence was duplicative and cumulative of the evidence previously of record. As such, it was not new and material evidence pursuant to § 3.156(b). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (distinguishing Voracek v. Nicholson, 421 F.3d 1299, 1305 (Fed. Cir. 2005); see also Beraud v. McDonald, 766 F.3d 1402, 1405- (Fed. Cir. 2014). As such, the issue of TDIU, as implicitly raised as part of the underlying service connection claim, became final. The Veteran next filed a claim for a TDIU on May 27, 2003, the current effective date. As this is the next earliest claim in the file, and it is more than one year after separation from service, this is the earliest possible effective date. As such, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Earlier effective date for eligibility to Dependents’ Educational Assistance The Veteran seeks eligibility to Dependents’ Education Assistance for his daughter prior to May 27, 2003. Dependents’ Educational Assistance benefits may be paid to dependents of a veteran whose has a service-connected disability that is rated permanent and total. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807 (a), 21.3021. A total disability may be assigned where a veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Eligibility to Dependents’ Educational Assistance begins on any date between: (1) the effective date of the rating decision, and (2) the date of notification to the person from whom eligibility is derived. 38 U.S.C. § 3512(a), (d). In a February 2016 rating decision, the RO granted a TDIU, effective May 27, 2003. The RO also granted basic eligibility to Dependents’ Educational Assistance beginning February 19, 2016. In March 2018, the RO granted eligibility to Dependents’ Educational Assistance, with a new effective date of May 27, 2003, based on a May 27, 2003 effective date for a TDIU. In the instant case, the effective date for the award of Dependents’ Educational Assistance benefits is May 27, 2003, the same date as the award of TDIU. As discussed above, the Board finds that the Veteran is not entitled to an earlier effective date for the award of TDIU. Dependents’ Educational Assistance benefits may not be awarded prior to the effective date of an award of a permanent and total service-connected disability rating. Therefore, the Veteran is not entitled to an effective date earlier than May 27, 2003, for entitlement to Dependents’ Educational Assistance benefits. 38 U.S.C. §§ 3501, 3510. As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel