Citation Nr: A19002145 Decision Date: 10/22/19 Archive Date: 10/22/19 DOCKET NO. 190419-8140 DATE: October 22, 2019 REMANDED 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 2, 2011 is remanded. 2. Entitlement to basic eligibility for Dependents’ Educational Assistance (DEA) prior to March 2, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of February 2019 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran previously filed a claim on the issue of a psychiatric condition in April 2007. The Veteran has timely appealed this case through extensive subsequent appellate development, to include Board decisions of December 2011, January 2013, January 2015, June 2017, and February 2019, as well as remands from the Court of Appeals for Veterans Claims (CAVC) of July 2012 and April 2014. The Board decision of February 2019 granted a TDIU, among other issues. The rating decision on appeal implemented the Board’s decision by assigning a TDIU effective from March 2, 2011. The rating decision on appeal likewise assigned basic eligibility for DEA. In correspondence of April 2019, the Veteran, through his counsel, disagreed with the effective dates assigned in the February 2019 rating decision: “[The Veteran disagrees with this decision and is appealing to the Board of Veterans’ Appeals… The Veteran selects direct review of his claim.” The Board notes that direct review is one of the appellate options available under the provisions of the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA). See 38 C.F.R. § 20.202(b)(1). The Veteran submitted the requisite VA Form 10182 with this correspondence, appealing the issues of earlier effective dates for a TDIU and DEA benefits. See 38 C.F.R. § 20.202(d) (providing that appeals under the VAIMA will not be accepted unless submitted using “the form prescribed by the Secretary”). Accordingly, the Board finds that the Veteran has requested that his claims for an earlier effective date for a TDIU and DEA benefits be adjudicated under the VAIMA. The Veteran’s additional claims, to include a higher disability rating for his psychiatric condition and entitlement to special monthly compensation, remain in varying stages of development under the legacy system of regulations and are therefore not before the Board in this appeal. While the Veteran argues in his April 2019 correspondence that “this request for TDIU is not a new claim for benefits, but rather part and parcel of the Veteran’s pending appeal for an increased rating[,]” the Board notes that applicable case law provides for the bifurcation of issues relating to TDIU, such as an earlier effective date, from the underlying predicate claim. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). 1. Entitlement to a TDIU prior to March 2, 2011. The VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Evidence submitted in September 2017 by the Veteran’s last employer reflects that his last date of employment was October 29, 2007. The Board’s prior decision of February 2019 found that the Veteran’s service-connected psychiatric and knee conditions were sufficient to warrant the assignment of a TDIU. However, the Veteran does not meet the schedular criteria for a TDIU until March 2, 2011. See 38 C.F.R. § 4.16(a) (requiring a single disability of 60 percent or greater or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater). The Veteran argues in correspondence of April 2019 that the Board may assign an extraschedular TDIU in the first instance and need not first refer such a claim for consideration by the Director, Compensation Service. This is plainly contradicted by the applicable regulations. See 38 C.F.R. § 4.16(b) (providing that the Board “should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards”). Furthermore, the cases cited by the Veteran in support of his claim on this point are plainly inapposite or not controlling. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (holding only that the Board is not bound in a subsequent determination by the decision of the Director, not that the Board may ignore the referral requirement entirely as the Veteran alleges here); see also Floyd v. Brown, 9 Vet. App. 88, 103 (1996) (dissenting judge opining that a referral requirement conflicts with Board’s statutory authority); see also Morgan v. Wilkie, 31 Vet. App. 162 (2019) (nonprecedential case addressing extraschedular evaluations). While the Board is sympathetic to the fact that the Veteran’s case has already been the subject of extensive prior adjudication, the Board is not empowered to ignore controlling regulations on the basis of avoiding further delay. 2. Entitlement to DEA benefits prior to March 2, 2011. The child, spouse, or surviving spouse of a veteran will have basic eligibility for DEA benefits if the veteran a) was discharged under conditions other than dishonorable or else died in service, and either b) has a permanent total service-connected disability, c) had such a disability upon death, or d) died as a result of such a disability. See 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). The rating decision on appeal assigned eligibility for DEA benefits effective from March 2, 2011, the same date from which the assignment of a TDIU reflected that the Veteran was permanently and totally disabled. Accordingly, the Board considers the claim for an earlier effective date for DEA benefits to be inextricably intertwined with the issue of an earlier effective date for a TDIU. These matters are therefore REMANDED for the following action: 1. Refer the Veteran’s claim to the Director, Compensation Service, for consideration of entitlement to an extraschedular TDIU under § 4.16(b). A copy of the Director’s decision on this claim shall be included in the claims file. 2. If an earlier date for the Veteran’s TDIU is assigned, readjudicate the Veteran’s assigned date of eligibility for DEA benefits. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.