Citation Nr: 20040331 Decision Date: 06/12/20 Archive Date: 06/12/20 DOCKET NO. 18-36 822 DATE: June 12, 2020 ORDER An earlier effective date of January 2, 2014 for the award of a total disability rating based on individual unemployability (TDIU) is granted. An earlier effective date of January 2, 2014 for the award of Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. On January 2, 2014, the Veteran submitted a claim of entitlement to a TDIU. 2. A January 2015 rating decision denied the claim of entitlement to a TDIU. New and material evidence was submitted within one year of the decision, as a result of which the January 2015 rating decision did not become final. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of January 2, 2014 for the award of a TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.160, 3.400. 2. The criteria for an earlier effective date of January 2, 2014 for the award of entitlement to DEA benefits under 38 U.S.C. Chapter 35 are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2008 to March 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded the claims because they were inextricably intertwined with other claims pending development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Effective Dates 1. Entitlement to an effective date prior to November 4, 2016 for the grant of a TDIU. 2. Entitlement to an effective date prior to November 4, 2016 for the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35. The Veteran contends that an effective date earlier than November 4, 2016 is warranted for the grant of a TDIU and basic eligibility to DEA. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Furthermore, new and material evidence received prior to the expiration of the appeal period, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. The record reflects that the Veteran filed a claim of entitlement to a TDIU in a VA Form 21-8940 that VA received on January 2, 2014. The Veteran was denied entitlement to a TDIU in a rating decision dated January 15, 2015. VA medical records, Social Security records, and VA examination reports were associated with the file in April, July and December 2015. The Veteran filed another VA Form 21-8940 on November 4, 2016. In a June 2017 rating decision, the RO granted entitlement to a TDIU and eligibility to DEA, effective November 4, 2016. The Veteran timely filed a Notice of Disagreement as to the effective date for the grant of a TDIU and eligibility to DEA. The Board finds that the VA medical records, Social Security records, and VA examination reports that were associated with the file in April, July and December 2015 constitute new and material evidence relevant to the issue of entitlement to a TDIU, and that this evidence was associated with the file within one year of the promulgation of the January 2015 rating decision. Thus, the January 2015 rating decision is not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d). For these reasons, an earlier effective date of January 2, 2014 for the award of a TDIU is warranted. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has also considered whether evidence dated one year prior to the date of receipt of the January 2014 TDIU claim demonstrates a worsening of the PTSD disability such that a TDIU is warranted during that one year period, but finds that it does not. Although the evidence during this period includes a statement from the Veteran’s former spouse indicating that he had informed her that he had no income, the evidence does not demonstrate that his lack of income was related to a worsening of his service-connected PTSD. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Board finds that the preponderance of the evidence is against the assignment of an effective date prior to January 2, 2014. The effective date for basic eligibility for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. As such, the Board finds that the appropriate effective date for the award of basic eligibility for DEA benefits in this case is January 2, 2014, as that is the date as of which it has been established by VA that the Veteran became permanently and totally disabled due to a service-connected disability. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.