Citation Nr: 18159569 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 08-32 348 DATE: December 20, 2018 ORDER Entitlement to service connection for arthritis of the left knee, secondary to a service-connected back disability is denied. Entitlement to service connection for arthritis of the right knee, secondary to a service-connected back disability is denied. Whether a rating reduction from 20 percent to 10 percent, effective February 5, 2018, for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right was proper is denied. Entitlement to an increased rating for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right, currently rated as 20 percent disabling, effective prior to February 5, 2018, and 10 percent thereafter is denied. Entitlement to an increased rating higher than 30 percent for allergic rhinitis/ chronic rhino-sinusitis is denied. Entitlement to an increased rating for depression, currently rated as 50 percent disabling prior to September 12, 2017, and 70 percent, thereafter is denied. Entitlement to an effective date earlier than April 9, 2010 for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to an earlier effective date of April 9, 2010, for the grant of Dependents' Educational Assistance under 38 USCA section Chapter 35 is granted, subject to the rules governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s left knee disability is neither proximately due to nor aggravated beyond its natural progression by his service-connected lumbar spine disability, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s right knee disability is neither proximately due to nor aggravated beyond its natural progression by his service-connected lumbar spine disability, and is not otherwise related to an in-service injury, event, or disease. 3. Effective February 5, 2018, the Veteran’s service-connected lumbar spine disability demonstrated actual material improvement that is reasonably certain to be maintained under the ordinary conditions of life and work. 4. Effective prior to February 5, 2018, forward flexion of the lumbar spine is not greater than 60 degrees. 5. Effective February 5, 2018, forward flexion of the lumbar spine is greater than 60 degrees. 6. The Veteran’s allergic rhinitis/ chronic rhino-sinusitis is manifested by more than six non-incapacitating episodes per year. 7. Effective prior to September 12, 2017, the Veteran’s depression is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood. 8. Effective September 12, 2017, the Veteran’s depression is manifested by occupational and social impairment due to deficiencies in most areas. 9. The Veteran’s service-connected disabilities did not prevent her from working until April 9, 2010. 10. The Veteran became permanently and totally disabled for purposes of DEA benefits, effective April 9, 2010. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for a right knee hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The rating reduction from 20 percent to 10 percent effective from February 5, 2018, for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right was proper. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107, 5112; 38 C.F.R. §§ 3.344, 4.2, 4.71a, Diagnostic Code 5242. 4. The criteria for an increased rating higher than 20 percent, effective prior to February 5, 2018, and 10 percent, thereafter, for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5242. 5. The criteria for an increased rating higher than 30 percent for allergic rhinitis/ chronic rhino-sinusitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.97, Diagnostic Codes 6522-6514. 6. The criteria for an increased rating higher than 50 percent, effective prior to September 12, 2017, and 70 percent, thereafter, for depression are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9434. 7. The criteria for an effective date prior to April 9, 2010, for the grant of entitlement to a TDIU are not met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.400, 4.16(a). 8. The criteria for an effective date of April 9, 2010, but no earlier, for eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Regional Office (RO) decisions of the Department of Veterans Affairs (VA) in Nashville, Tennessee. The Veteran provided sworn testimony in support of her claim from a previous appeal, during a January 2011 hearing before the undersigned Veterans Law Judge. She has declined the opportunity to testify at a hearing regarding the issues presently on appeal. See, e.g., October 2016 statement from the Veteran’s representative. This case was previously before the Board in November 2014, at which time the Board, in pertinent part, found that new and material evidence had been received to reopen a service connection claim for an acquired psychiatric disability other than PTSD to include depression; and granted service connection for depression secondary to a hysterectomy performed in service. Thereafter, the RO in implementing the grant of service connection for depression assigned a 30 percent rating, effective March 28, 2007, in a January 2015 rating decision. The RO later granted an increased rating of 50 percent for depression, effective March 28, 2007, in an August 2015 rating decision. The Veteran appealed the rating decision and effective date assigned. In November 2014 the Board also, in pertinent part, remanded an increased rating claim for a lumbar spine disability for a new examination. Entitlement to a TDIU prior to April 9, 2010 was remanded so that the RO could refer this matter for consideration of an extraschedular evaluation. Entitlement to an effective date earlier than August 24, 2011 for assignment of Dependents Educational Assistance under 38 U.S.C.A. § Chapter 35 was considered inextricably intertwined with the other issues being remanded. Service connection for disabilities of the knees was remanded for examinations to address whether the knees were aggravated by the service-connected back disability. Finally, the increased rating claim for allergic rhinitis was remanded for a statement of the case. These issues were all subsequently appealed by the Veteran and are now before the Board for appellate review. In January 2017, the Board remanded the issues of entitlement to an increased rating for a back disability, allergic rhinitis, and depression; service connection for bilateral knee disabilities; entitlement to an effective date earlier than April 9, 2010 for the award of a TDIU, and an effective date earlier than August 24, 2011 for the award of Dependents’ Educational Assistance. Rather than increasing the disability rating for the spine, in a May 2018 rating decision, the RO decreased the rating to 10 percent, effective February 5, 2018. The case is now returned for appellate review. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns these issues. See Dyment v. West, 13 Vet. App. 141 (1999). Service Connection 1. Entitlement to service connection for arthritis of the left knee, secondary to a service-connected back disability 2. Entitlement to service connection for arthritis of the right knee, secondary to a service-connected back disability The Veteran contends that she has a bilateral knee disability because of her service-connected lumbar spine disability. She asserts that he had several falls due to her back disability, which resulted in her bilateral knee disability. See, e.g., March 2012 VA examination report. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by her service-connected lumbar spine disability. The Board concludes that, while the Veteran has a current diagnosis of arthritis of the bilateral knees, the preponderance of the evidence is against finding that the Veteran’s the bilateral knee disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). A March 2012 VA examination report notes that the Veteran had a diagnosis of arthritis of the knees. She had reportedly fallen in 2004 and in 2008, and had knee pain ever since. The examiner determined that the Veteran’s bilateral knee disability was not caused by the service-connected lumbar spine disability. The rationale was that no literature supported that a back disability could cause knee arthritis or knee pain. The examiner determined that the fall in 2008, which the Veteran believed had been because of her back disability did not cause a fracture or trauma to the knee. A July 2015 VA medical opinion provided that the Veteran’s fall in 2008 was not shown to be a result of her back disability. The examiner further determined that the Veteran’s progression of her degenerative arthritis was a combination of her morbid obesity and lack of meniscal tissue. A February 2018 VA examination report shows the Veteran had diagnoses of arthritis and meniscal tears of both knees. It was noted that she had undergone surgery for both knees in 2009 to have the cartilage removed. The examiner determined that the Veteran’s bilateral knee disability including degenerative joint disease and meniscal tears was not associated with her back disability. The rationale was that there was no evidence or likely rationale that her gait changed from her back problems, as such would cause the knee problems. The examiner found that the Veteran’s bilateral knee degenerative joint disease and meniscal tears were less likely than not proximately due to or the result of her back disability, including any leg weakness due to her back disability causing her to fall. The Veteran even stated that her knee disability was a result of her knees buckling and her falling on her knees. There was no indication that this was the result of her back problems. It was noted that there was no mention of any knee problem until her fall in 2008. While the Veteran believes her bilateral knee disabilities are proximately due to or the result of her service-connected lumbar spine disability, she is not competent to provide a nexus opinion in this case and her statements are not corroborated by contemporaneous evidence. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA medical opinions provided in March 2012, July 2015, and February 2018. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s bilateral knee disability is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 3. Whether a rating reduction from 20 percent to 10 percent, effective February 5, 2018, for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right was proper Initially, it is noted that where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, the reduction of the Veteran’s spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right did not result in a reduction of compensation payments. Specifically, her combined disability rating remained 90 percent, effective September 11, 2009 (with a TDIU in effect as of April 9, 2010). Therefore, the notice provisions of 38 C.F.R. § 3.105(e) do not apply. Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the 20 percent rating for the Veteran’s lumbar spine disability had been in effect since March 2, 2004; i.e., for more than five years. Thus, the provisions of 38 C.F.R. § 3.344(a) apply, and the evidence must show improvement under the ordinary conditions of life to warrant reduction in rating. The United States Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a rating has been in effect. Certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). VA cannot reduce a Veteran’s disability evaluation without first finding, inter alia, that that an improvement has occurred in the Veteran’s service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown, 5 Vet. App. at 421. Care must be taken to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. As noted, disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. As noted, the 20 percent rating for the Veteran’s lumbar spine disability had been in effect since March 2, 2004; i.e., for more than five years. Thus, the provisions of 38 C.F.R. § 3.344(a) apply, and the evidence must show improvement under the ordinary conditions of life to warrant reduction in rating. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis of the spine, which is rated under the Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. The RO based the Veteran’s reduction in rating for the lumbar spine, in part, on a February 5, 2018 VA examination report. The report noted that the Veteran indicated that she did not have flare-ups of her lumbar spine, but did have trouble bending. Range of motion studies showed forward flexion to 80 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. Pain was noted on examination, on extension and left lateral rotation, specifically, but it did not result in functional loss. There was no objective evidence of localized pain or pain with weight-bearing. Repetitive use testing did not result in additional functional loss. Strength testing and neurology evaluation was normal in the lower extremities; and there were no signs of radiculopathy. In addition, the Veteran did not have intervertebral disc syndrome. These findings are consistent with a 10 percent rating under Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine. However, to warrant a reduction, the evidence must show sustained improvement. A previous examination in July 2015 notes that the Veteran’s forward flexion was to 80 degrees, with extension to 15 degrees, and right and left lateral flexion and rotation to 20 degrees. There was no evidence of pain with weight-bearing. There was evidence of localized pain on palpation across the low back and paraspinal muscles. Repetitive use testing showed there was additional pain after three repetitions, but did not result on any further limitation of motion. The Veteran also had muscle spasm of the lumbar spine, but it did not result in abnormal gait or abnormal spinal contour. Strength testing in the lower extremities was normal. The Veteran had decreased sensory examination in the right lower leg/ankle, and right foot/toes, and signs of mild radiculopathy of the right sciatic nerve. It was noted that the Veteran’s lumbar spine impacted her ability to work in that she had limitations in ambulation with flare-ups. These findings also are consistent with a 10 percent rating under Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine. (Note: The Veteran is separately rated for decreased sensation of the right lower extremity, effective March 2, 2004). Prior to this, a VA examination in August 2011 shows forward flexion of the lumbar spine to 90 degrees with pain. The pain was not aggravated by repeat motions times three. She could laterally bend and rotate to the right and left to 15 degrees, with no additional pain with repetitions. However, a separate general VA examination in August 2011 shows forward flexion to 60 degrees, with no additional limitation of motion after repetitive use. While the general VA examination in August 2011 is more consistent with a 20 percent rating, the findings on the August 2011 examination, specific to the spine, are like the previous examinations in July 2015 and February 2018, are consistent with a 10 percent rating for arthritis in the lumbar spine. Based on the VA spine examinations in August 2011, July 2015, and February 2018, demonstrating forward flexion to no greater than 80 degrees with no further impairment due to repetitive use testing, the evidence shows improvement in the lumbar spine under the ordinary conditions of life to warrant reduction in rating. Thus, a reduction in rating from 20 percent was proper. 4. Entitlement to an increased rating for spondylosis with listhesis and degenerative changes of L5-S1 and convex curvature to the right, currently rated as 20 percent disabling, effective prior to February 5, 2018, and 10 percent thereafter The Veteran contends that her lumbar spine disability symptoms are more severe than warranted for the 20 percent and 10 percent ratings assigned. The Board concludes that the Veteran’s lumbosacral spine disability does not warrant a rating higher than 20 percent prior to February 5, 2018, or higher than 10 percent, effective thereafter. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran is not shown to have intervertebral disc syndrome. See, e.g., February 2018 VA examination report. Thus, the provisions for ratings based on intervertebral disc syndrome do not apply. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5239. Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Effective prior to February 5, 2018, range of motion studies show painful motion in forward flexion to 90 degrees. Effective February 5, 2018, the evidence shows painful motion to 80 degrees. Both findings warrant a rating of 10 percent. Prior to February 5, 2018, a VA spine examination in August 2011 shows forward flexion of the lumbar spine to 90 degrees with pain. The pain was not aggravated by repeat motions times three. She could laterally bend and rotate to the right and left to 15 degrees, with no additional pain with repetitions. A separate VA general examination in August 2011 shows forward flexion to 60 degrees with additional pain after repetitions, but no additional limitation of motion. A July 2015 VA examination notes that the Veteran’s forward flexion was to 80 degrees, with extension to 15 degrees, and right and left lateral flexion and rotation to 20 degrees. There was no evidence of pain with weight-bearing. There was evidence of localized pain on palpation across the low back and paraspinal muscles. Repetitive use testing showed there was additional pain after three repetitions, but did not result on any further limitation of motion. The Veteran also had muscle spasm of the lumbar spine, but it did not result in abnormal gait or abnormal spinal contour. Strength testing in the lower extremities was normal. The Veteran had decreased sensory examination in the right lower leg/ankle, and right foot/toes, and signs of mild radiculopathy of the right sciatic nerve. It was noted that the Veteran’s lumbar spine impacted her ability to work in that she had limitations in ambulation with flare-ups. Except for the general VA examination in August 2011, showing flexion to 60 degrees, which is consistent with a 20 percent rating assigned, the remaining findings on the VA spine examinations are consistent with a 10 percent rating under Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine. (Note: The Veteran is separately rated for decreased sensation of the right lower extremity, effective March 2, 2004). Examination on February 5, 2018 shows that the Veteran indicated that she did not have flare-ups of her lumbar spine, but did have trouble bending. Range of motion studies showed forward flexion to 80 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. Pain was noted on examination, on extension and left lateral rotation, specifically, but it did not result in functional loss. There was no objective evidence of localized pain or pain with weight-bearing. Repetitive use testing did not result in additional functional loss. Strength testing and neurology evaluation was normal in the lower extremities; and there were no signs of radiculopathy. In addition, the Veteran did not have intervertebral disc syndrome. These findings also are consistent with a 10 percent rating under Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine. No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as functional impairment due to pain has been addressed by the rating assigned. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (Pain that affects some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” constitutes functional loss.). The evidence shows that the Veteran experiences painful motion of the thoracolumbar spine; however, it does not result in a separate and/or higher rating unless it results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Even taking pain on movement into consideration, none of the examinations indicated limitation of flexion to more than 80 degrees, because of pain. After careful review the Board finds that the examinations are adequate under applicable VA regulations and fully captures the functional impact of this disability, and thus, Board finds that the examinations are adequate to rate the claim for the lumbar spine. The Veteran asserts that she is entitled to an increased rating for her lumbar spine disability. Her factual recitation as to symptomatology associated with the lumbar spine is accepted as credible. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of her thoracolumbar spine disability in the context of the VA Rating Schedule, and her assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran’s spine and discussed all relevant details for purposes of rating her disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the Veteran’s statements as to her functional impairment and finds that the impairment has been considered by the 20 and 10 percent ratings assigned. As noted, the spine regulations provide for separate ratings for neurological impairment associated with the lumbar spine disability. The Veteran is presently rated for her neurological impairment on the right side under Diagnostic Code 8520 pertaining to the sciatic nerve, effective since March 2, 2004. See 38 C.F.R. § 4.124a. No neurological or sensory impairment is noted on the left lower extremity, associated with the service-connected lumbar spine disability. Also, no other neurologic abnormalities or findings related to the thoracolumbar spine, such as bowel or bladder problems were noted. For all the foregoing reasons, the Board finds that a rating higher than 20 percent, prior to February 5, 2018, and 10 percent, effective thereafter, is not warranted for the lumbar spine disability. There are no objective medical findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the Veteran’s lumbar spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”). In the instant case, the Veteran has limitation of motion of the lumbar spine. However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluations are, therefore, adequate. See Thun, 22 Vet. App. at 115. The symptoms associated with the Veteran’s lumbar spine (i.e., limitation of motion due to pain) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 20 and 10 percent ratings assigned under Diagnostic Code 5242 specifically contemplate these symptoms. The Board finds that the rating criteria reasonably describe the Veteran’s disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. 5. Entitlement to an increased rating higher than 30 percent for allergic rhinitis/ chronic rhino-sinusitis The Veteran contends that her allergic rhinitis/ chronic rhino-sinusitis is more severe than warranted for the 30 percent rating assigned. She contends that her condition results in vertigo and constant coughing from post nasal drip and drainage in her throat. See November 2009 VA-Form 9. She testified at the January 2011 Board hearing that she had experienced eight incapacitating episodes since 2010 due to her allergic rhinitis. She also stated that she had gone to the emergency room for antibiotics about 10 to 12 times in the last two years. The Board concludes that the Veteran’s allergic rhinitis/ chronic rhino-sinusitis does not warrant a rating higher than 30 percent. The Veteran’s allergic rhinitis/ chronic rhino-sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Codes 6522-6514. Under Diagnostic Code 6522, a 10 percent rating is assigned for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is assigned for allergic rhinitis with polyps. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 6514, a 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. An August 2011 VA examination report shows the Veteran mentioned that she had constant nasal congestion because of her rhinosinusitis. She noted that the medication did not completely relieve symptoms and that she must sleep sitting up. She also noted that she had sinus symptoms that had caused incapacitation over the past six months. Specifically, she noted two incapacitating episodes over the past 12 months and more than six non-incapacitating episodes. The Veteran stated on a July 2015 VA pulmonary diagnostic study that her rhinitis had worsened. A nurse practitioner filled out a Disability Benefits Questionnaire (DBQ) for the Veteran’s sinusitis/rhinitis in December 2017. The Veteran stated that in the last 18 months, she used medication but still had persistent symptoms from her sinuses. She stated that her voice had changed over the years. She reported current symptoms of a yellowish crusting insider her nose three times per week. She denied any nasal drainage. She reported that her husband’s smoking sometimes aggravated her condition. She also indicated that she had two sinus infections per year requiring antibiotics for seven days each. Her current treatment was fluticasone nasal spray, saline nasal spray, and loratadine. On objective evaluation, the Veteran had episodes of sinusitis, tenderness of the affected sinus, and crusting. She had had two non-incapacitating episodes within the past 12 months, and no incapacitating episodes. There were nasal polyps. A February 2018 DBQ filled out by a VA doctor notes that the Veteran did not have nasal polyps or greater than 50-percent obstruction on either side due to rhinitis. She reportedly had no current symptoms of sinusitis, but did have headaches during an acute episode. She had two sinus injections treated with antibiotics in 2017. She had had no incapacitating episodes in the last year. She also had chronic laryngitis with hoarseness. These findings are consistent with a 30 percent rating under Diagnostic Code 6514 for sinusitis because the Veteran reportedly has more than six non-incapacitating episodes of sinusitis per year. The next higher rating of 50 percent under Diagnostic Code 6514 is not applicable, as the evidence does not show near constant sinusitis episodes. On examination in December 2017, she denied any drainage from her sinuses. With respect to the allergic rhinitis, while the December 2017 DBQ noted that the Veteran had nasal polyps, this is inconsistent with the remaining evidence of record, which does not demonstrate any polyps. The same report in December 2017 noted nasal polyps and greater than 50 percent obstruction on both sides due to allergic rhinitis. However, the DBQ in February 2018 shows no symptoms of rhinitis. Given that the findings on examination in December 2017 are inconsistent with all other evidence of record, including the DBQ filled out by a VA doctor two months later, more probative value is assigned to the rest of the evidence of record, which does not show any compensable findings pertaining to allergic rhinitis. The Veteran asserts that she is entitled to an increased rating for her allergic rhinitis/sinusitis. Her factual recitation as to symptomatology associated with the rhinitis/sinusitis is accepted as credible. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of her rhinitis/sinusitis in the context of the VA Rating Schedule, and her assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran’s sinuses and nose and discussed all relevant details for purposes of rating her disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the Veteran’s statements as to her functional impairment and finds that the impairment has been considered by the 30 percent rating assigned. For all the foregoing reasons, the Board finds that a rating higher than 30 percent for allergic rhinitis/ sinusitis is not warranted. There are no objective medical findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the Veteran’s allergic rhinitis/ sinusitis presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”). In the instant case, the Veteran has headaches, pain, crusting, and purulent discharge associated with her sinusitis/ allergic rhinitis. However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluations are, therefore, adequate. See Thun, 22 Vet. App. at 115. The symptoms associated with the Veteran’s rhinitis/sinusitis (i.e., more than six non-incapacitating episodes of sinusitis per year) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 30 percent rating assigned under Diagnostic Code 6514 specifically contemplate these symptoms. The Board finds that the rating criteria reasonably describe the Veteran’s disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. 6. Entitlement to an increased rating for depression, currently rated as 50 percent disabling prior to September 12, 2017, and 70 percent, thereafter The Veteran contends that her depression symptoms are more severe than warranted for a 50 percent rating for the period prior to September 12, 2017; and higher than 70 percent, thereafter. The Board concludes that the Veteran’s depression does not warrant a rating higher than 50 percent prior to September 12, 2017, or higher than 70 percent, thereafter. The criteria for evaluating depression are found at 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent evaluation is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities that addressed mental disorders to remove outdated references to the DSM and to replace them with references to the recently updated DSM-5. The provisions of the interim final rule applied to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The Secretary did not intend for the provisions of the interim final rule to apply to claims that had been already certified for appeal to the Board, or that were pending before the Board, the Court, or the United States Court of Appeals for the Federal Circuit. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). This issue was originally certified to the Board in November 2015. Thus, the DSM-5 applies to the present case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely based on social impairment. See 38 C.F.R. § 4.126(b). Effective prior to September 12, 2017, the Veteran is shown to have occupational and social impairment with reduced reliability and productivity due to disturbances of motivation and mood. A September 2009 letter from a private physician notes that the Veteran had been under his care for treatment of severe, recurrent major depression since April 2000. Her symptoms included depressed moods, crying spells, suicidal thoughts, psychomotor agitation, and psychomotor retardation, isolative behavior, tension headaches, anxiety, and panic attacks. An October 2012 VA examination report notes that the Veteran has depression with occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. It was noted that she was not working due to physical problems. She had depressed mood, chronic sleep impairment, and disturbances of motivation and mood. An April 2013 VA examination reported notes the same findings of occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran had depressed mood, anxiety, chronic sleep impairment, and disturbance of motivation and mood. These symptoms more closely approximate the criteria for a 50 percent rating, because while the Veteran has occupational and social impairment with reduced reliability and productive due to disturbances of motivation and mood, she is not shown to have deficiencies in most areas. The October 2012 and April 2013 VA examination reports even note that the Veteran only has mild to transient symptoms, which is reflective of a 10 percent rating under Diagnostic Code 9434. Socially, she has been married and divorced twice and has some friends from her depression group. She spent her free time watching television or on the computer. She attended church once a month and every month would go to the casino with her mother. Occupationally, she was not working, but this was due to physical reasons, rather than her mental health disability, per her report. See, e.g., October 2012 VA examination report. Effective September 12, 2017, however, the Veteran is shown to have deficiencies in most areas due to her depression. A September 12, 2017 VA examination report shows the Veteran reported having panic attacks when she drove. She also reported anhedonia, social isolation, irritability, and decreased patience and focus. The examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Her symptoms included depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, and suicidal ideation. Occupationally, it was noted that the Veteran had difficulty maintaining concentration and focus on work over a period of time, had significant difficulty functioning around other people, fatigue caused concentrating and focusing on work assignments difficult, and the Veteran had difficulty sustaining energy and motivation to complete assignments. Review of the medical evidence shows occupational and social impairment with deficiencies in most areas, such as work and mood, due to such symptoms as some suicidal ideation, near continuous depression affecting the ability to function independently, appropriately, and effectively, and difficulty in adapting to stressful circumstances, which is consistent with a 70 percent rating under Diagnostic Code 9434. While the medical evidence since September 12, 2017, shows occupational and social impairment with deficiencies in most areas, the medical evidence does not show total occupational and social impairment. The Veteran has been severely occupationally and socially impaired due to her difficulty adapting to stressful situations. However, to warrant a 100 percent rating for PTSD, the medical evidence must show total occupational and social impairment. Socially, while the Veteran has a history of suicidal ideation, she has never been found to be in persistent danger of hurting herself or others. She isolates from others, but maintains a relationship with her ex-husband and her grandchildren. Therefore, the evidence does not rise to the level of a total disability rating for her depression effective September 12, 2017. Considering the foregoing, the Board concludes that a rating higher than 50 percent, effective prior to September 12, 2017, and higher than 70 percent, thereafter, for the Veteran’s depression is not warranted. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has also considered whether the Veteran’s depression presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”). In the instant case, the Veteran has moderate to severe social and occupational functional impairment due to her symptoms of depression. However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. The symptoms associated with the Veteran’s depression, effective prior to September 12, 2017 (i.e., occupational and social impairment due to disturbances of motivation and mood) and effective September 12, 2017 (i.e., occupational and social impairment with deficiencies in most areas, such as work, judgment, and/or mood) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 50 and 70 percent ratings assigned under Diagnostic Code 9434 specifically contemplates these symptoms. The Board finds that the rating criteria reasonably describe the Veteran’s disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. The Board notes further, that the Veteran has been in receipt of a total rating based on individual unemployability due to service-connected disabilities effective from April 9, 2010. Effective Date 7. Entitlement to an effective date earlier than April 9, 2010 for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims 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 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 had occurred within one year from the date of claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. The RO granted entitlement to a TDIU in an April 2012 rating decision, effective April 9, 2010, based on the date that the Veteran reportedly stopped working. The Veteran noted on her VA-Form 21-8940 that her service-connected disabilities affected her full-time employment on April 8, 2010. The Veteran’s previous employer also reported on a VA-Form 21-4192 that the Veteran last worked on April 8, 2010. The question for the Board is whether the Veteran is entitled to a TDIU prior to April 9, 2010. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran is entitled to a TDIU prior to April 9, 2010. Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). TDIU may be assigned where the schedular rating is less than total, when 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 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In cases where a Veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the case should be submitted to the Director, Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Veteran met the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16 (a), effective March 28, 2007. See generally 38 C.F.R. § 4.25, Table I – Combined Ratings Table. However, the Veteran did not reportedly stop working until April 8, 2010. Thus, entitlement to a TDIU is warranted the day after her last day of work. While the Veteran believes she should be entitled to a TDIU prior to April 9, 2010, she has not offered any argument for why this should be; nor does the record show that entitlement to an earlier effective date for TDIU is warranted. Based on the foregoing discussion, the Board finds that entitlement to an effective date prior to April 9, 2010 for the grant of a TDIU is not warranted. 8. Entitlement to an effective date earlier than August 24, 2011, for the grant of Dependents' Educational Assistance under 38 USCA section Chapter 35 Regarding the Veteran’s claim for an earlier effective date for Dependents’ Educational Assistance (DEA) benefits pursuant to 38 U.S.C., Chapter 35, the Veteran was awarded eligibility to DEA effective August 24, 2011, based upon the RO’s finding that she had a permanent total disability as of that date. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, “eligibility date” means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501(a)(1), and “initial rating decision” means a decision by VA that establishes the Veteran’s total disability as permanent in nature. 38 U.S.C. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran’s discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In this case, even though the Veteran was assigned a TDIU effective April 9, 2010, the Veteran did not undergo an evaluation showing that her service-connected disabilities were permanent until August 24, 2011. Nonetheless, as entitlement to DEA benefits is derived from an award of a total rating, these benefits should share the same effective date. According to the record, the Veteran became totally disabled as of April 9, 2010 due to impairment from her service-connected disabilities, and the Board finds that the record demonstrates that such impairment is reasonably certain to continue throughout her life. As such, an earlier effective date of April 9, 2010 for eligibility for Chapter 35 benefits is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond