Citation Nr: 20002286 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 19-32 512 DATE: January 10, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 11, 2013, is denied. Entitlement to an effective date earlier than September 11, 2013, for the award of basic eligibility for dependents’ educational assistance (DEA) benefits is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities prior to September 11, 2013 were not of such severity as to preclude substantially gainful employment. 2. Prior to the effective date of September 11, 2013, the Veteran did not meet the criteria for the award of basic eligibility for DEA benefits. CONCLUSIONS OF LAW 1. The criteria for the assignment of a TDIU, prior to September 11, 2013, were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16. 2. The criteria for an effective date prior to September 11, 2013, for the award of basic eligibility for DEA benefits have not been met. 38 U.S.C. §§ 1155, 3500, 3501, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.340, 3.341, 3.400, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army National Guard, to include a period of active duty for training from April 2008 to September 2008. Earlier Effective Dates 1. Entitlement to a TDIU, prior to September 11, 2013. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran claims he was unemployable due to his service-connected disabilities, prior to September 11, 2013. Prior to September 11, 2013, the Veteran was service-connected for lumbar intervertebral disc syndrome evaluated as 20 percent disabling; right lower extremity radiculopathy evaluated as 10 percent disabling; and left lower extremity radiculopathy evaluated as 10 percent disabling. Together, prior to September 11, 2013, he had a combined evaluation of 40 percent. Therefore, the Veteran did not meet the schedular criteria for a TDIU rating prior to September 11, 2013. See 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, submitted in May 2015, the Veteran indicated that he became too disabled to work in late 2009 because of orthopedic and psychological issues. However, under the section listing his employment, the Veteran noted that he was employed through 2014 as a military police officer. A September 2013 VA examiner noted that the Veteran’s thoracolumbar spine condition would not impact his ability to work. Notably, although he alleges that he became too disabled to work in late 2009, the Board finds that the evidence of record does not reflect that the Veteran was prevented from maintaining any substantially gainful employment due to his service-connected disabilities, standing alone, prior to September 11, 2013. While the Board does not doubt that the Veteran’s service-connected disabilities, prior to September 11, 2013, had some effect on his employability, as evidenced by his 40 percent rating (if they did not, there would be no basis for the 40 percent combined evaluation), the weight of the evidence does not support his contention that his service-connected disabilities, prior to September 11, 2013, were of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, most evidence provides support against this claim. In particular, the Board finds compelling the findings of the September 2013 VA examiner, who specifically found the Veteran’s lumbar spine disability not to have any impact on his ability to work. The Board also looks to the Veteran’s report that he was employed until 2014 in finding that the symptomatology associated with the service-connected disabilities, prior to September 11, 2013, was appropriately compensated by the assigned 40 percent combined rating and did not prevent him from working or obtaining work. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. While the Veteran is competent to discuss the symptoms of his service-connected disabilities and his perception of their effect on his unemployment, prior to September 11, 2013, his assertions are outweighed by the evidence of record. The Board reiterates that the Veteran did not meet the percentage requirements for a TDIU on a schedular basis, prior to September 11, 2013. Moreover, as there is no evidence to support a finding that his disabilities are outside the norm (prior to September 11, 2013), the Board finds that referral for extraschedular consideration is not warranted. Van Hoose, 4 Vet. App. 361. Accordingly, a basis for a grant of a TDIU, prior to September 11, 2013, on a schedular or extraschedular basis has not been presented during the appeals period. Thus, the Board finds that the evidence does not demonstrate that the Veteran was unemployable due to his service-connected disabilities prior to September 11, 2013. As such, the preponderance of the evidence is against the Veteran, and the claim for a TDIU, prior to September 11, 2013, must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date earlier than September 11, 2013, for the award of basic eligibility for DEA benefits. In pertinent part, in May 2018, the RO granted the Veteran an effective date of September 11, 2013, for the award of DEA benefits. Therefore, the Board finds that the first question it must consider in connection with this earlier effective date claim is the date on which entitlement to basic eligibility to DEA benefits arose. This is so because the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). In this regard, basic eligibility for DEA exists if a Veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total 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). With the above criteria in mind, the record shows that at all times prior to September 11, 2013, the Veteran was only service connected for lumbar intervertebral disc syndrome, right lower extremity lumbar radiculopathy, and left lower extremity lumbar radiculopathy at a combined disability rating of 40 percent. The record does not show that prior to September 11, 2013, the Veteran was unemployable due to service-connected disabilities. 38 C.F.R. § 4.16. Therefore, the Board finds that the Veteran did not meet the minimum threshold requirement to be considered for basic eligibility for DEA benefits at any time prior to September 11, 2013. 38 C.F.R. §§ 3.340, 3.341. Because the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later, the Board finds that the claim for an earlier effective date for basic eligibility for DEA benefits must be denied at this juncture because entitlement did not arise until September 11, 2013. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.