Citation Nr: 18140735 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 12-00 090A DATE: October 5, 2018 REMANDED Entitlement to an effective date prior to June 28, 2013, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an effective date prior to June 28, 2013, for eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office, which awarded a TDIU and eligibility to DEA benefits effective August 14, 2014. In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an earlier effective date of June 28, 2013, for the award of such benefits. Therefore, the claims on appeal have been characterized as shown above. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2013. A transcript of the hearing is of record. 1. Entitlement to an effective date prior to June 28, 2013, for the award of a TDIU. The Veteran asserts that his service-connected disabilities have prevented him from securing and following a substantially gainful occupation since September 2007. Currently, he is in receipt of a TDIU effective June 28, 2013. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Prior to June 28, 2013, the Veteran is service-connected for residuals of a right hip dislocation, evaluated as 30 percent disabling from March 4, 2008, to April 27, 2011, and 50 percent disabling thereafter, and right hip scars, evaluated as noncompensably disabling, effective March 4, 2008, which result in a combined disability rating of 50 percent prior to June 28, 2013. Based on the above evaluations, the Veteran does not meet the schedular threshold for consideration of a TDIU prior to June 28, 2013. As such, his representative requests extra-schedular consideration in this case. In this regard, the Board finds the evidence suggests the Veteran may have been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to June 28, 2013. Specifically, an August 2015 private vocational assessment reflects the examiner’s opinion that the Veteran’s service-connected right hip and left knee disabilities prevented him from securing and following substantially gainful employment from at least 2007, to include in his former line of work. However, as noted previously, the Veteran was not service-connected for his left knee disability prior to June 28, 2013. Thereafter, a June 2017 private vocational assessment reflects an opinion that it was more likely than not the Veteran had been unable to secure and follow substantially gainful employment since 2007 due solely to his service-connected right hip disability. Based on this evidence, the Board finds this matter should be referred to the Director of Compensation and Pension Service for extra-schedular consideration of entitlement to a TDIU for the period prior to June 28, 2013, pursuant to 38 C.F.R. § 4.16(b). 2. Entitlement to an effective date prior to June 28, 2013, for eligibility to DEA under 38 U.S.C. Chapter 35. Basic eligibility to DEA under 38 U.S.C. Chapter 35 exists if a veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. See 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3021. There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable in this case, e.g., the death of a veteran or if the veteran is currently on active duty. Id. As noted by the AOJ, DEA benefits were awarded based on the grant of a TDIU, effective June 28, 2013, as such demonstrated that the Veteran was permanently and totally disabled due to service-connected disabilities as of such date. As a result, the Board finds the development and adjudication of the claim of entitlement to an earlier effective date for the award of a TDIU, which is remanded herein, could impact the Veteran’s eligibility to DEA benefits. Therefore, the issues are inextricably intertwined and adjudication of the latter must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following actions: Refer the Veteran’s claim of entitlement to a TDIU prior to June 28, 2013, to the Director of Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel