Citation Nr: 1807144 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-34 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for disability due to claustrophobia with depression and psychogenic non-epileptic seizure. 2. Entitlement to an effective date prior to April 16, 2009 for award of a total disability rating due to individual unemployabilility (TDIU). 3. Entitlement to an effective date prior to April 16, 2009 for eligibility to Dependents' Education Assistance under 38 U.S.C. chapter 35 (DEA). REPRESENTATION Appellant represented by: Mr. Michael Viterna, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1961 to March 1964. The Veteran died in July 2014. The appellant is his surviving spouse and she has been determined by the RO to be a valid substitute in this matter. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs, Regional Office, located in Winston-Salem (RO). In a December 2009 rating decision, the RO denied a rating in excess of 70 percent for service-connected claustrophobia with depression and denied a claim for service connection for a seizure disorder, to include as secondary to service-connected claustrophobia with depression. In a September 2011 rating decision, a Decision Review Officer (DRO) granted a TDIU and DEA benefits and assigned an effective date of April 16, 2009, to both. In a March 2017 decision, the Board awarded service connection for seizure disorder, and remanded the increased rating for additional development and deferred the claims for earlier effect dates pending implementation of the award of service connection for seizure disorders and assignment of rating and effective date. An October 2017 supplemental statement of the case (SSOC) shows that the Veteran's psychiatric disability was expanded to include non-epileptic seizure disorder as it is considered a conversion disorder and cannot be rated separately under the general rating formula for mental disorders, and a 70 percent rating was continued. Finally, the Board notes that in a November 2017 informal hearing presentation, the appellant's representative appears to raise a motion of clear and unmistakable error (CUE) in a November 2006 rating decision that increased the assigned rating for psychiatric disability from 50 to 70 percent disabling, effective from February 21, 2006. Inasmuch as the Veteran had not raised a motion of CUE in the November 2006 rating decision before his death, the United States Court of Appeals for the Federal Circuit has held that a survivor cannot initiate a freestanding CUE claim if the veteran had not already filed such a claim. Rusick v. Gibson, 760 F.3d 1342, 1346 (Fed. Cir. 2014) (citing Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998). Accordingly, the appellant cannot raise a motion of CUE in the November 2006 rating decision, and such will not be addressed further. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's disability due to claustrophobia with depression and psychogenic non-epileptic seizure more closely approximates total occupational and social impairment. 2. An November 2007 rating decision denied entitlement to a TDIU rating; the Veteran did not appeal this decision or submit new and material evidence within one year of notification of that rating decision. 3. VA received the Veteran's claim for a TDIU on April 16, 2009. 4. The Veteran had one disability, claustrophobia with depression, rated as 70 percent disabling from February 21, 2006. 5. It is not factually ascertainable from the evidence of record dated one year prior to the date of the TDIU claim that the Veteran's sole service-connected disability due to claustrophobia with depression and psychogenic non-epileptic seizure limited him to marginal employment. 6. Entitlement to basic eligibility for DEA benefits arose on April 16, 2009, the effective date for the award of a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent evaluation for disability due to claustrophobia with depression and psychogenic non-epileptic seizure have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9412-9499 (2017). 2. The criteria for an effective date prior to April 16, 2009 for the award of a TDIU have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.400, 4.16 (2017). 3. The criteria for an effective date prior to April 16, 2009 for the award of DEA have not been met. 38 U.S.C. §§ 3501, 3510, 5113 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, a May 2009 notice letter satisfied the duty to notify provisions. Moreover, in any case, the appeal arises from a disagreement with the initially assigned effective date after a TDIU was granted. Once a decision awarding a TDIU and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (2012); 38 C.F.R. § 3.159 (c). The Veteran's service treatment records have been obtained. Post-service VA and private treatment records have also been obtained. In addition, the Veteran was provided a VA medical examination for his service-connected psychiatric disability in July 2009 and May 2011. Pursuant to the Board's March 2017 remand directives, the claims folder was updated with the Veteran's VA treatment records and the Agency of Original Jurisdiction (AOJ) implemented the Board's award of service connection for seizure disorder by expanding the Veteran's psychiatric disability to include psychogenic non-epileptic seizures, but continuing a 70 percent rating. Review of the record reflects that there has been substantial compliance with the Board's remand directives and the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). 2. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1995). The Veteran's disability due to claustrophobia with depression and psychogenic non-epileptic seizure was rated 70 percent disabling under Diagnostic 9499-9412 prior to his death. 38 C.F.R. § 4.130 (2017). The appellant contends that his acquired psychiatric disability more closely approximates a total disability rating. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned for 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is assigned for 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; memory loss for names of close relatives, own occupation or own name, will be rated as 100 percent disabling. 38 C.F.R. § 4.130. Under 38 C.F.R. § 4.130, the nomenclature employed in this portion of the rating schedule is based upon the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (American Psychiatric Association 4th ed. 1994) (DSM-V). Under DSM-V, a Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." A GAF score between 31-40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score between 41-50 indicates severe symptoms such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends and conflicts with peers or co-workers. See DSM-V. Having considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence supports an increased evaluation of a 100 percent for the entire period under appeal and the appeal as to this claim will be allowed. A review of the record shows that the Veteran filed a claim for increased rating in April 2009. At that time, the Veteran asserted that his acquired psychiatric disability was "now much more severe in nature" and he had lost the ability to maintain employment and suffered from impaired thinking. He also reported that he had been hospitalized in October 2008 because of a seizure episode. The Veteran was afforded VA psychiatric examinations in July 2009 and May 2011, he has received ongoing mental health care for his acquired psychiatric symptomatology, and he has submitted lay statements in support of his claim as well as lay statements from his family and friends in support of his claim. The claims folder also contains a January 2014 medical statement from the psychologist who had conducted the Veteran's 2009 and 2011 VA examinations. Collectively, the evidence of record demonstrates that the Veteran's disability due to claustrophobia with depression and psychogenic non-epileptic seizure has been manifested by the following symptoms: weekly panic attacks; irritability; anger management problems; poor impulse control; memory impairment that included forgetting names and events; poor judgement; impaired thought processes; impaired concentration; sleep impairment; near-continuous depression that affected ability to function; difficulty with maintaining relationships; diminished ability to appropriately interact with others; difficulty adapting to stressful situations; and difficulty understanding complex commands. The medical evidence also shows that the Veteran suffers from psychogenic non-epileptic seizures as result of increased emotional stress and anxiety. During the period from 2007 to 2009, he reported two seizure episodes, and one of those episodes required him to be hospitalized for several days. In the July 2009 and May 2011 VA examination reports, the same VA examiner found that the Veteran's disability resulted in severe functional impairment and precluded his ability to work. Moreover, the same psychologist concluded that the Veteran's acquired psychiatric disability results in occupational and social impairment in the January 2014 medical statement. The Board finds that such symptomatology more closely approximates the criteria associated with a total, 100 percent, disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9412. The Board acknowledges that the record demonstrates that the Veteran was able to maintain his marital relationship of over 40 years; however, the Board cannot ignore that the Veteran's wife's and daughter's statement attesting to the significant difficulty of living with the Veteran because of the severity of his disability and the detrimental impact his symptomatology had on his marital and familial relationships. Notably, the Veteran's daughters have provide several statements in which they describe their observations of the Veteran's inappropriate, abusive, and erratic behavior both at home and at work. See May 2006, October 2010, January 2013, June 2015, January 2016, May 2017, and September 2017 statements in support of the case. The record also contains a statement from previous employees who observed changes in the Veteran's behavior and described the difficulty of working under his supervision because of his inappropriate behavior and anger outbursts. See April 2016 statements in support of the case from A.B. and T.B. In addition, the medical evidence of record describes the Veteran's symptomatology as major impairment in occupational and social functioning, as indicated by an assigned GAF scaled score of 35. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); (observing that GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness" under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.); see Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Board notes here that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service- connected mental condition that affect the level of occupational or social impairment. Id. at 443. Pursuant to 38 C.F.R. § 4.7, when a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. In this case, there is a question as to whether the Veteran's acquired psychiatric symptoms warrant a 70 or 100 percent rating under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the clinical signs and manifestations of the Veteran's symptoms more nearly approximate the criteria for a 100 percent schedular rating. Accordingly, a total schedular rating for service-connected claustrophobia with depression and psychogenic non-epileptic seizure is assigned for the entire rating period. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9412. The Board has also considered the appellant's assertion that the Veteran should be assigned a separation compensable rating for his psychogenic non-epileptic seizure. See November 2017 informal hearing presentation. The Board does not agree. Here, the competent medical evidence of record demonstrates that the Veteran's psychogenic non-epileptic seizures are somatic manifestations of psychological distress attributed to his acquired psychiatric disability. See July 2009 VA medical examination report, January 2014 private medical statement from M.B., MD, and February 2017 VA Health Administration medical expert opinion report. Although the Rating Schedule criteria for mental disorders do not specifically address psychogenic non-epileptic seizure, the underlying condition is analogous to a conversion disorder, which attributes somatic manifestations to psychiatric disability. The evidence demonstrates the claimed disability for which a separate rating is sought, identified in the Rating Schedule as conversion disorder under Diagnostic Code 9422, is also evaluated under the criteria for mental disorders pursuant to 38 C.F.R. § 4.130. The Board finds, in essence, that for VA disability compensation purposes these disorders constitute the same symptom manifestations. The Board concludes that a separate rating is barred by the prohibition against pyramiding disability ratings under 38 C.F.R. § 4.14 (2017). 3. Earlier Effective Dates The appellant is seeking effective dates prior to April 16, 2009 for the Veteran's awards of TDIU and DEA. Specifically, she asserts that the appropriate date should be the date he was awarded a 70 percent evaluation for his sole service-connected disability. In the alternative, the appellant contends that effective date of one year prior to the date of the TDIU claim is warranted. A TDIU claim qualifies as a claim for increased disability compensation. A TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110 (a)(2012); 38 C.F.R. § 3.400 (2017). Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). "Claim" is defined broadly to include 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) (2017); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (prior to 2015). The Board notes that claims are now filed on standard forms, but these changes were made after the time period in question. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01 (March 24, 2015). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a) (2017). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). In this case, the Veteran's sole service-connected disability has been rated as 70 percent disabling since February 21, 2006, and he has therefore met the criteria for a schedular TDIU since then. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. § 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board notes that marginal employment is not substantial employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal). Marginal employment, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). DEA benefits are derivative of a TDIU award, as basic eligibility for DEA benefits exists if a veteran has a permanent total service-connected disability. 38 U.S.C. §§ 3500, 3501 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2017). By way of background, the Veteran filed a claim for increased rating for service-connected claustrophobia with depression disability in February 2006. He did not report to a scheduled VA examination, and his claim was denied in a June 2006 rating decision. The Veteran requested that his claim be reconsidered as he did not receive notice of the scheduled VA examination prior to the date of the examination. He underwent a VA psychiatric examination in September 2006, and in a November 2006 rating decision, the RO awarded an increased rating to 70 percent, effective from February 21, 2006. The Veteran did not appeal that decision; however, additional evidence regarding the service-connected disability was received and the claim was further developed. In December 2006, the Veteran filed a claim for increased rating based on TDIU and the Veteran underwent a VA psychiatric examination in February 2007. In a May 2007 rating decision, the RO denied the claims for increased rating and for TDIU. The claim for TDIU was denied because the Veteran failed to submit a completed VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and it was unclear from the evidence if the Veteran's reported self-employment was considered gainful employment. In June 2007, the Veteran requested that the RO reconsider his claim for TDIU and he submitted a completed VA Form 21-8940. The RO confirmed and continued the denial of his TDIU claim in a November 2007 rating decision because the Veteran did not submit the requested documentation regarding his gross and net income in the prior year. The Veteran requested that the RO again reconsider his claim for TDIU in a January 2008 statement, and in a January 2008 notice letter, the RO advised the Veteran that in order to reconsider his claim for TDIU, he needed to submitted additional evidence. In the letter, the Veteran was referred to the November 2007 rating decision for the specific evidence he needed to submit to support his claim for TDIU. The Veteran was also advised that he had a year from the date of the notification letter to submit an appeal. A review of the record does not reflect that the Veteran submitted any additional statements or evidence following the January 2008 notice letter until April 16, 2009, when he filed a claim for increased rating based on unemployability. The Veteran did not appeal the November 2007 decision and no additional evidence was received within one year of notification of the denial; the November 2007 rating decision is final. 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2017). Given the foregoing and the applicable laws cited above, the sole avenue by which the Veteran could establish an effective date prior to April 16, 2009 for awards of TDIU and DEA would be to show a factually ascertainable date on which the Veteran became unemployable due to his service-connected disability within the one-year period immediately preceding his claim for a TDIU. 38 C.F.R. § 3.400. The remaining inquiry on appeal is whether it is factually ascertainable that the Veteran's sole service-connected disability rendered him unable to secure or follow a substantially gainful occupation in light of his educational and employment history in the year prior to the date his claim for a TDIU was received on April 16, 2009. The Board finds that it is not factually ascertainable. As discussed, the RO previously denied the Veteran's claim for TDIU because it was unclear from the evidence whether his self-employment was more than marginal employment because absence of documentation regarding his income. During the February 2007 VA psychiatric examination, the Veteran informed the VA examiner that he was self-employed, but he had decreased his total working time to his disability. On his June 2007 VA Form 21-8940, the Veteran stated that he was self-employed in marketing sales where he made advertising sales for small newspapers. He stated that he was employed from 2002 to 2007, but he became too disabled to work in 2004. He stated that he had lost income in the last 12 months. In a June 2007 notice letter, RO requested that the Veteran provide additional evidence regarding his self-employment, including hours worked per week in the previous year, as well as documentation showing his gross and net income from the year prior to his becoming too disabled to work due to his service-connected disability. He did not submit the requested documentation until December 2010. A March 2008 VA treatment records show that the Veteran informed treating mental health professionals that he was currently employed as salesman but his disability interfered with his ability to travel of work. In a January 2009 initial VA mental health treatment record, the Veteran reported that he now does his distance work by telephone as he is no longer able to drive because of a motor vehicle accident as result of a seizure. These VA treatment records show that the Veteran reported that he was still working, albeit limited. The Veteran did not submit documentation regarding his income prior to 2009 until December 2010, which comes well-after the current assigned effective date. Thus, it was not factually ascertainable based on the available evidence in the year prior to the date of his TDIU claim to determine whether his employment was only marginal. Although VA has agreement with Interval Revenue Services (IRS) for Income Verification Matching (IVM) program, VA is not on constructive notice of income information submitted to Internal Revenue Service (IRS), which is an executive department wholly separate from VA. The Board has no reason to doubt the Veteran's contentions with respect to his difficulty in maintaining employment prior to the current effective date. In fact, the February 2007 VA examination report shows that the Veteran's service-connected psychiatric disability resulted in severe impairment with increasing difficulty working effectively and interacting with clients. However, the Veteran did not submit the requested information regarding his income to VA until well-after he filed his April 2009 claim. See generally Harper v. Brown, 10 Vet. App. 125 (1997). In summary, no appeal or additional evidence was received within one year of the November 2007 rating decision that denied claim for TDIU and that decision is final. The Veteran's claim for TDIU was received on April 16, 2009, and it was not factually ascertainable based on the evidence of record one year prior to the date of his claim that he was only able to maintain at most marginal employment prior to April 2009. Thus, earlier effective dates for TDIU and associated DEA benefits prior to April 16, 2009 are not available. Accordingly, the Board finds that the preponderance of the evidence is against the awards of TDIU and DEA prior to April 16, 2009. See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of 38 U.S.C. § 5110 (b)(2) that it 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."). In reaching such decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim of entitlement to earlier effective dates for TDIU and DEA. As such, that doctrine is not applicable in the instant appeal, and the appellant's claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a 100 percent disability rating for service-connected claustrophobia with depression and psychogenic non-epileptic seizure, is granted. Entitlement to an effective date prior to April 16, 2009 for the grant of a total disability rating due to individual unemployability (TDIU) is denied. Entitlement to an effective date prior to April 16, 2009 for the grant of Dependents' Educational Assistance (DEA) benefits is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs