Citation Nr: 18141053 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-34 731 DATE: October 9, 2018 ORDER Entitlement to an effective date earlier than May 16, 2011, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to an effective date earlier than May 16, 2011, for the grant of entitlement to Dependents' Educational Assistance (DEA) benefits is denied. FINDINGS OF FACT 1. The Veteran filed formal claims for entitlement to a TDIU that were received on December 11, 2009 and March 15, 2010; in June 2014, the RO granted entitlement to a TDIU effective May 16, 2011. 2. Prior to May 16, 2011, the Veteran did not meet the schedular criteria for a TDIU and the record does not reflect that the Veteran was unemployable due to his service-connected disabilities. 3. Prior to May 16, 2011, the Veteran did not meet the minimum threshold requirement to be considered for basic eligibility for DEA benefits under 38 U.S.C. Chapter 35. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date earlier than May 16, 2011, for the grant of entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16 (2018). 2. The criteria for the assignment of an effective date earlier than May 16, 2011, for the grant of entitlement to DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 3511, 3512, 5107, 5110, 5113 (2012); 38 C.F.R. §§ 3.400, 21.3041, 21.4131(d)(1) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1967 to January 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to a TDIU and DEA benefits both effective May 16, 2011. Earlier Effective Date Claims 1. Entitlement to an effective date earlier than May 16, 2011, for the grant of entitlement to a TDIU Unless otherwise specified, the effective date of an evaluation and award of compensation based on a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a TDIU claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date for TDIU is the date of receipt of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for TDIU is governed by the effective date provisions for increased ratings of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000). A TDIU may be assigned on a schedular basis where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16(a). For a claimant to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, since a high rating recognizes that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant can perform the physical and mental acts required by employment, not whether employment can be found. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Where the percentage requirements for TDIU are not met, a total disability rating may be assigned on an extraschedular basis when a veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer a claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service or designee. See Bowling v. Principi, 15 Vet. App. at 1, 10 (2001). Entitlement to a TDIU was granted in a June 2014 rating decision. The RO assigned an effective date of May 16, 2011, which was noted to be the date the Veteran became eligible on a schedular basis and the evidence showed he was unable to obtain gainful employment. The Veteran seeks an effective date earlier than May 16, 2011 for the award of TDIU benefits. The essence of his claim is that he is entitled to an effective date of December 11, 2009, the date on which his formal claim for TDIU was received; that he was unable to perform even marginal employment as a result of his service-connected disabilities as of December 2009; that VA should have considered an evaluation and opinion provided by Dr. L., which the Board notes was dated October 29, 2004, but not received by VA until October 6, 2008; and that although he did not meet the schedular criteria for entitlement to a TDIU until May 16, 2011, his claim should have been considered on an extraschedular basis as of December 2009, when his claim for a TDIU was filed. The Veteran filed a formal claim for a TDIU that was received on December 11, 2009; he filed a subsequent formal claim for a TDIU that was received on March 15, 2010. See VA Forms 21-8940. The claim for a TDIU was initially denied in a June 2010 rating decision, but granted in the June 2014 rating decision after the Veteran was granted separate 10 percent ratings for peripheral neuropathy of the right and left lower extremities. See July 2011 rating decision. Effective May 16, 2011, the Veteran was service connected for posttraumatic stress disorder (PTSD) (50 percent disabling); diabetes mellitus (20 percent disabling); and hypertension, peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity (all 10 percent disabling). The combined evaluation was 70 percent effective May 16, 2011. Prior to May 16, 2011, the combined disability rating for the Veteran’s service-connected PTSD, diabetes and hypertension had been 60 percent since June 28, 2008. Since the Veteran did not meet the schedular criteria for entitlement to a TDIU prior to May 16, 2011, he is not entitled to an effective date earlier than May 16, 2011, for the grant of a TDIU on a schedular basis. Thus, the question is whether referral of the claim for entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is warranted for the period of the claim prior to May 16, 2011. The Veteran has asserted that his service-connected PTSD, hypertension and diabetes mellitus are the disabilities that prevent him from securing or following any substantially gainful occupation. See VA Forms 21-8940 received December 2009 and March 2010. In the December 2009 VA Form 21-8940, the Veteran indicated that his last employer was the Mowa Choctaw Indian Tribe, where he had worked from 1995 to 2008 in an administrative capacity; that March 2009 was the date his disability affected full-time employment, that he last worked full-time, and that he became too disabled to work; and that he had left this job because of his disability. The Veteran also reported that he had not tried to obtain employment since becoming too disabled to work. He indicated he had completed two years of college and did not have any other education or training before or since becoming too disabled to work. The only difference in the VA Form 8940 received in March 2010 was that the Veteran indicated that March 2008 was the date his disability affected full-time employment, that he last worked full-time, and that he became too disabled to work. An October 2003 VA treatment report noted he reported having two associate’s degrees and a work history including as a welder, machinist and electrician. In a March 2010 VA Form 21-4192 from the Mowa Band of Choctaw Indians, it was noted that no concessions had been made to the Veteran by reason of age or disability and that the Veteran was not working because he had retired. March 1, 2009, was noted to be the date the Veteran last worked. The Veteran’s representative has argued that the October 2004 evaluation performed by Dr. L., which was not received until October 2008, supports an award of TDIU prior to May 2011. In that report, Dr. L. determined that the Veteran’s PTSD symptoms, combined with declining energy associated with hypertension and diabetes mellitus, were preventing him from doing a good job, but not that he was being prevented from doing his job. Dr. L. further opined that given the Veteran’s age, education and disabilities, it was highly unlikely that he would be employable when he loses his current job. The Board notes that Dr. L.’s opinion was based in part on the Veteran’s age, which cannot be considered in awarding a TDIU. Moreover, this report was prepared five years prior to the date of claim for TDIU, and the Veteran was still employed at that time and for over four years thereafter. Accordingly, this October 2004 report warrants little, if any, probative weight as to whether the Veteran was unemployable contemporaneous to his claim filed in December 2009. Moreover, a November 2008 VA record indicates that the Veteran reported he had retired from his job because stress was making his PTSD worse, but he was doing some part time-work at the same place, which allowed him to control the stress better as he could leave when he needed to. In addition, an April 2009 VA examiner concluded that depressed mood, anxiety, and chronic sleep impairment would likely cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks if the Veteran were currently employed, but the examination does not reflect the examiner’s opinion that the Veteran was unemployable. Further, on a March 2010 VA general medical examination, the examiner noted the Veteran’s hypertension and diabetes caused no functional limitations, and that he was not unemployable as a result of service-connected disabilities. In sum, prior to May 16, 2011, the evidence does not reflect that his service-connected PTSD, hypertension and diabetes, without regard to age or nonservice connected disabilities, rendered him unable to obtain or maintain substantially gainful employment such that referral for extraschedular consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). 2. Entitlement to an effective date earlier than May 16, 2011, for the grant of entitlement to DEA benefits For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran’s death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510 (2012); 38 C.F.R. § 3.807(a), 21.3021. Regarding the Veteran’s claim for an effective date prior to May 16, 2011, for the grant of basic eligibility to Chapter 35 educational benefits, the Board finds that pursuant to 38 U.S.C. Chapter 35, the Veteran was found to have a permanent total service-connected disability when he was granted entitlement to a TDIU effective May 16, 2011. In general, effective dates relating to awards under Chapters 30, 31, 32, and 35 of Title 38 U.S.C. or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113 (2012). In sum, the Veteran was found to have a permanent total service-connected disability when he was granted entitlement to a TDIU effective May 16, 2011. Since the Board has determined that the Veteran is not entitled to an effective date earlier than May 16, 2011 for the grant of entitlement to a TDIU, entitlement to basic eligibility to Chapter 35 educational benefits must also be effective May 16, 2011. Although the Veteran asserts that he is entitled to an earlier effective date for Chapter 35 educational assistance, the regulatory criteria and legal precedent governing eligibility for the receipt of such benefits are clear and specific. The Board is bound by these criteria. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Thus, an effective date for DEA prior to May 16, 2011 is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel