Citation Nr: 19156325 Decision Date: 07/22/19 Archive Date: 07/22/19 DOCKET NO. 19-12 965 DATE: July 22, 2019 ORDER The substantive appeal received on January 7, 2019, pertaining to the issues of entitlement to earlier effective dates for the grant of a total disability rating based upon individual unemployability (TDIU) and Dependent’s Educational Assistance was timely. REMANDED Entitlement to an effective date prior to January 13, 2015, for the grant of a TDIU is remanded. Entitlement to an effective date prior to January 13, 2015, for the grant of Dependents' Educational Assistance is remanded. FINDING OF FACT On January 11, 2017, the Veteran was informed that the Agency of Original Jurisdiction (AOJ) was accepting his appeal for earlier effective dates for the grant of a TDIU and Dependents’ Educational Assistance. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a timely substantive appeal pertaining to the issues of entitlement to earlier effective dates for the grant of a TDIU and Dependent’s Educational Assistance have been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302, 20.303, 20.305, 20.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from April 1965 to August 1965. These matters are on appeal from a January 2015 rating decision. 1. Whether the substantive appeal received on January 7, 2019, pertaining to the issues of entitlement to earlier effective dates for the grant of a TDIU and Dependent’s Educational Assistance was timely. The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.101, 20.103. The decision as to the timeliness and adequacy of a substantive appeal will be made by the Board. 38 U.S.C. § 7108; 38 C.F.R. § 20.104(c), (d). Under VA regulations, an appeal consists of a timely filed written notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans’ Appeals, or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 19.22. The necessary information consists of specific arguments relating to errors of facts or law made by the AOJ in reaching the determination being appealed, and the arguments made are to be construed liberally. Id. The substantive appeal must be filed within 60 days from the date that notification of an SOC is sent to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 19.30, 19.52. Here, a January 2015 rating decision granted TDIU and Dependent’s Educational Assistance, effective January 13, 2015. The Veteran was notified of the decision on April 14, 2015. The Veteran filed a notice of disagreement with the effective dates assigned in the January 2015 rating decision. The NOD was received on April 28, 2015. On January 9, 2017, the AOJ issued a SOC and mailed a copy to the Veteran and his representative at the time. On January 11, 2017, the Veteran was informed that VA was accepting his appeal for earlier effective dates for the grant of a TDIU and Dependents’ Educational Assistance. In a March 2017 email, the former law firm of the Veteran’s attorney informed the AOJ that the Veteran’s attorney was at a new firm. In November 2018, the Veteran submitted a VA Form 21-22a that appointed his current representative. On January 7, 2019, the Veteran filed a VA Form 9 in response to the January 2017 SOC. In February 2019, the Veteran and his attorney were informed that his VA Form 9 was untimely. A substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, the Veteran was explicitly informed that his appeal pertaining to the issues of entitlement to earlier effective dates for individual unemployability and Chapter 35 Dependents’ Educational Assistance was accepted by the AOJ. Therefore, the Board finds that the substantive appeal received on January 7, 2019, pertaining to the appeal of entitlement to earlier effective dates for the grant of individual unemployability and Dependent’s Educational Assistance was timely. See Percy, 23 Vet. App. at 37. REASONS FOR REMAND 1. Entitlement to an effective date prior to January 13, 2015, for the grant of a TDIU is remanded. If the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to the service-connected disabilities, the case must be submitted to the Director of Compensation Service for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Prior to January 13, 2015, the Veteran was service-connected for degenerative joint disease of the lumbar strain rated as 40 percent disabling, and radiculopathy of the right and left lower extremities rated as 10 percent disabling. His combined disability rating was 50 percent. Thus, in order for a TDIU to be assigned prior to January 13, 2015, an extraschedular TDIU would need to be granted, but the Board cannot do that in the first instance. The Veteran retired from the trucking industry in 2003. At the June 2010 VA examination, the Veteran indicated that he was unable to walk or stand for more than 15 minutes or sit for longer than 2 hours due to his service-connected back disability. Additionally, at the May 2011 VA examination, the Veteran endorsed a walking tolerance of 5 minutes and a standing tolerance of 20 minutes. He required a cane to walk. The Board find that there is sufficient evidence to warrant referral of the TDIU claim to the Director of Compensation Service for consideration of an extraschedular TDIU. 2. Entitlement to an effective date prior to January 13, 2015, for the grant of Dependents' Educational Assistance is remanded. Finally, because a decision on the remanded issue of entitlement to an effective date prior to January 13, 2015, for the grant of a TDIU could significantly impact a decision on the issue of entitlement to an effective date prior to January 13, 2015, for the grant of Dependents’ Educational Assistance, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following actions: 1. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an effective date prior to January 13, 2015, for the grant of Dependents’ Educational Assistance. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, 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.