Citation Nr: 20037026 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 19-07 151 DATE: May 29, 2020 ORDER The April 28, 2020 decision of the Board of Veterans’ Appeals, as to the claim for an effective date prior to September 29, 2012 for a finding of basic eligibility for DEA benefits, is vacated. An effective date of December 6, 2010 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. An effective date of December 6, 2010 for the finding of eligibility to Dependents’ Educational Assistance (DEA) benefits is granted. REMANDED Entitlement to TDIU prior to December 6, 2010 on an extraschedular basis is remanded. Entitlement to DEA benefits prior to December 6, 2010 is remanded. FINDINGS OF FACT 1. The Board failed to take jurisdiction over an issue that was ripe for adjudication in the April 28, 2020 decision. In not doing so, the Board incorrectly decided the claim for an effective date prior to September 29, 2012 for a finding of basic eligibility for DEA benefits. Consequently, the Veteran was denied due process of the law. 2. July 2011 statements from the Veteran and her former life/business coach document an ascertainable increase in the severity of her service-connected psychiatric disability symptoms at least one year prior to the receipt of the Veteran’s TDIU claim on December 6, 2010. 3. The effective date of the finding of basic eligibility for DEA benefits coincides with a finding of eligibility based on the effective date of the award of a TDIU. CONCLUSIONS OF LAW 1. The criteria for a motion of vacatur of the Board decision of April 28, 2020 as to the claim for an effective date prior to September 29, 2012 for a finding of basic eligibility for DEA benefits, have been met. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.904. 2. The criteria for an earlier effective date of December 6, 2010 for the award of a TDIU have been met. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. § 3.400 (o)(2). 3. The criteria for an earlier effective date of December 6, 2010 for the finding of basic eligibility for DEA benefits have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807 (a), 21.3021. MOTION TO VACATE On April 28, 2020 the Board of Veterans Appeals (Board) denied the Veteran’s claim for an earlier effective date for the finding of basic eligibility for DEA benefits. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. Here, in the April 2020 decision the Board failed to take jurisdiction over an earlier effective date for an award of a TDIU claim that was properly before it. Consideration of this claim was necessary to properly adjudicate the earlier effective date for the finding of basic eligibility for DEA benefits claim. Accordingly, the motion to vacate is granted and the April 28, 2020 Board decision as to the claim for an effective date prior to September 29, 2012 for the finding of basic eligibility for DEA benefits is vacated. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100 (b). Rather, in the present decision below, the Board will reconsider the Veteran’s claim for an effective date prior to September 29, 2012 for the finding of basic eligibility for DEA benefits and will adjudicate the clam for an effective date prior to September 29, 2012 for the award of a TDIU claim as if the previous April 28, 2020 Board decision had never been issued. See 38 C.F.R. § 20.904 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1986 to January 1990. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. In an August 2018 Board of Veterans Appeals (Board) decision, the Veteran was awarded a TDIU. A February 2019 AMA rating decision implemented the award of a TDIU and a finding of basic eligibility for DEA benefits with effective dates of September 29, 2012. In July 2019, the Veteran timely filed a VA Form 10182 with an attached motion for reconsideration appealing for effective dates prior to September 29, 2012 for an award of TDIU and a finding of basic eligibility for DEA benefits, requesting direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Accordingly, these matters are before the Board on appeal from a February 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board adjudicated the earlier effective date for a finding of basic eligibility for DEA benefits claim and declined to take jurisdiction over the earlier effective date for the award of a TDIU claim. The Board has statutory authority to correct obvious errors in the record and possesses five methods by which to correct error: reconsideration, revision based on clear and unmistakable error, corrected orders, supplemental decisions, and vacatur. 38 C.F.R. §§ 20.904, 20.1000-1001, 20.1102, 20.1400-1411. A supplemental decision, remand, or order may be used for correcting an obvious error consisting of the inadvertent failure to address an issue within the Board’s jurisdiction in a prior decision, remand, or order. With the timely filing of a VA Form 10182, the Veteran had perfected an appeal on the issue of an earlier effective date for the award of a TDIU. This claim was within the Board’s jurisdiction at the time of the April 2020 Board decision but was not addressed. Ingram v. Nicholson, 21 Vet. App. 232, 242 (2007) (claims which are not adjudicated remain pending until adjudicated). Under the present circumstances, the Board shall proceed with a supplemental decision addressing the claim for an earlier effective date for the award of a TDIU. In addition, the Board will vacate its April 2020 adjudication of the earlier effective date for a finding of basic eligibility for DEA benefits claim and will readjudicate that claim herein. 1. An effective date prior to September 29, 2012 for the award of a TDIU. Legal Criteria TDIU is considered a rating and not a disability. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (o) (2018). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1) (2018). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). However, when determining the appropriate effective date for an award of TDIU, whether on a schedular or extraschedular basis, the effective date of such an award cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is predicated. Delrio v. Wilkie, No. 17-4220, 2019 U.S. App. Vet. Claims LEXIS 2233 *3132 (Dec. 19, 2019). As an award of TDIU must be based on a service-connected disability or disabilities, the effective date for the award of TDIU cannot, as a matter of logic, predate the effective date for the award of service connection for the disability or disabilities which result in the Veteran’s inability to gain or maintain substantially gainful employment. Id. at *32; see also Ross v. Peake, 21 Vet. App. 528, 534 (2008), Canady v. Nicholson, 20 Vet. App. 393, 398 (2006). Factual Background & Analysis Here, the Veteran’s claim for a TDIU was raised in conjunction with the Veteran’s December 6, 2010 increased rating claim for a psychiatric disability. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran’s increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). As stated, the effective date of an award of increased compensation (in this case TDIU) may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). Here, there is ample evidence that the Veteran’s service-connected disabilities caused her to be unable to gain or maintain substantially gainful employment within one year prior to the receipt of her increased rating claim. A July 2011 statement from the Veteran explained that she has struggled maintaining employment since her discharge from the army because of an inability to focus on job tasks due to anxiety and confrontations with her co-workers. She also discussed that her service-connected psychiatric disability intermittently causes severe episodes of depression, anxiety and suicidal ideation, causing her to be bed-ridden for several days. A July 2011 statement from the Veteran’s former life/business coach who worked with the Veteran from June 2009 to June 2011 noted that the Veteran would call daily with feelings of panic about her life. It was further discussed that the Veteran would feel overwhelmed by simple exercises and that she would often take to her bed for 3 days at a time because she felt “overwhelmed and depressed.” The statement’s author opined that the Veteran is unable to handle full-time employment and that even part-time employment would prove difficult due to her mood swings, feeling overwhelmed and anxiety. Based on the foregoing and finding all reasonable doubt in favor of the Veteran, the Board finds that the evidence is certainly in relative equipoise as to whether the Veteran’s service-connected disabilities had increased in severity up to one year prior to receipt of the Veteran’s TDIU claim (as part and parcel of the December 6, 2010 increased rating claim). However, during the period prior to December 6, 2010 the Veteran did not meet the schedular requirements for a grant of a TDIU, as he was only in receipt of a 30 percent rating for PTSD. Under these circumstances, TDIU may still be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b); however, as a threshold matter, such cases must first be submitted to the Director, Compensation and Pension Service, for initial consideration of whether TDIU is warranted despite the fact that the Veteran does not meet the schedular requirements. Accordingly, for the period from December 6, 2010, the Board finds that TDIU is warranted. As for the period prior to December 6, 2010, the Veteran does not meet the schedular requirements for the grant of TDIU, and so the matter must be remanded for referral to the appropriate agency for consideration of an extraschedular grant of TDIU; instructions regarding this remand are detailed below. 2. An effective date prior to September 29, 2012 for the finding of basic eligibility for DEA benefits. Legal Criteria DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); see 38 C.F.R. §§ 3.807 (a)(1)-(2), 21.3021(a)(1)(iii), (3)(i). The RO, in its February 2019 rating decision, determined that the Veteran was entitled to an effective date for DEA that coincided with the date of entitlement to TDIU benefits. The Board will not disturb this favorable finding and likewise concludes that the effective date for the award of TDIU should be used for the Veteran’s basic eligibility for DEA benefits. In this regard, for purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran’s current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501 (a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113 (a). Factual Background & Analysis With respect to this matter, because entitlement to TDIU has been shown to be warranted at an earlier date of December 6, 2010, the effective date for entitlement to eligibility for educational assistance under Chapter 35 coincides with that date, but no earlier. Similarly, as the determination of whether TDIU is warranted on an extraschedular basis prior to December 6, 2010 must be remanded for additional consideration, the determination regarding whether an effective date prior to December 6, 2010 is warranted must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). In this regard, an earlier effective date of December 6, 2010 for the award of DEA benefits is warranted. 38 U.S.C. § 5113 (a). REASONS FOR REMAND 1. Entitlement to TDIU prior to December 6, 2010 on an extraschedular basis. As stated above, entitlement to TDIU prior to December 6, 2010 is not warranted on a schedular basis; however, referral for extraschedular consideration is warranted pursuant to 38 C.F.R. § 4.16 (b). 2. Entitlement to DEA benefits prior to December 6, 2010 is remanded. As entitlement to DEA benefits is inextricably intertwined with the TDIU claim on appeal, the issue of whether entitlement is warranted prior to December 6, 2010 must also be remanded. Harris, supra. (Continued on the next page)   The matters are REMANDED for the following action: The AOJ must refer the matter of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service for a determination as to whether the Veteran is entitled to assignment of TDIU prior to December 6, 2010 under the provisions of 38 C.F.R. § 4.16 (b). C. M. Collins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.