Citation Nr: 20052480 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 20-02 619 DATE: August 6, 2020 ORDER An effective date earlier than January 10, 2013 for the assignment of a total rating based upon individual unemployability (TDIU) due to service-connected disability is denied. An effective date earlier than January 10, 2013 for the establishment of basic eligibility for education benefits under Chapter 35, Title 38, United States Code (Dependents’ Education Assistance (DEA)) is denied. FINDINGS OF FACT 1. Service connection was not in effect for any disability of the Veteran prior to January 10, 2013. 2. The basic eligibility criteria for education benefits under Chapter 35 (DEA) were not met prior to January 10, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 10, 2013 for the assignment of TDIU due to service-connected disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.400, 4.16. 2. The criteria for an effective date earlier than January 10, 2013 for the establishment of basic eligibility for education benefits under Chapter 35 (DEA) have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1983 to November 1987. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from a June 2018 decision review officer (DRO) decision at a Department of Veterans Affairs (VA) Regional Office (RO) which established TDIU and basic eligibility for Chapter 35 (DEA) benefits effective January 10, 2013. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2020. A transcript of that hearing is of record. The Board notes the Veteran also perfected an appeal on the issues of entitlement to higher ratings for her service-connected pulmonary embolism and unspecified anxiety disorder, as well as service connection for lupus as secondary to the pulmonary embolism. Further, she provided testimony on these issues at a hearing before a different VLJ of the Board in January 2020. However, as explained in greater detail below, the resolution of the earlier effective date claims that are the subject of this appeal are not inextricably intertwined with the resolution of the pulmonary embolism, psychiatric disorder, and lupus claims. Accordingly, the Board will proceed with the adjudication of the earlier effective date claims, and the other claims will be the subject of different Board decision. 1. Entitlement to an effective date earlier than January 10, 2013 for the assignment of TDIU due to service-connected disability A TDIU claim is a claim for increased compensation. As such, the effective date rules for increased compensation apply to TDIU claims. See Hurd v. West, 13 Vet. App. 449 (2000). In general, the effective date of an award of increased compensation will be the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). An exception to that rule provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400 (o)(2). See also Hazan v. Gober, 10 Vet. App. 511 (1992) It is the established policy of VA that all veterans who are unable to secure and follow substantially gainful employment by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has essentially contended, to include at her April 2020 hearing, that she was unable to engage in substantially gainful employment due to her now service-connected disabilities prior to January 10, 2013. She has also referred to evidence in support of this claim to include a statement from her former employer, and an April 2020 medical statement. The Board notes, however, that service connection is not in effect for any disability of the Veteran prior to January 10, 2013. Specifically, service connection was established for pulmonary embolism and headaches effective January 10, 2013 by a March 2014 rating decision. In addition, service connection was established for her unspecified anxiety disorder effective July 8, 2013 by an April 2014 rating decision. Further, the Veteran did not disagree with the effective dates assigned by these rating decisions, and new and material evidence on these effective dates was not submitted within the appeal period of these rating decisions. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Consequently, the decision on these effective dates are final and binding upon the Board in this appeal. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. As noted above, the Veteran has contended that she was unable to engage in substantially gainful employment prior to January 10, 2013, and provided evidence in support of this contention. However, even if for the sake of argument that such was the case, the United States Court of Appeals for Veterans Claims (Court) has explicitly held that effective date for a TDIU cannot be earlier than the effective date of service connection for the underlying disability or disabilities upon which the TDIU is based. Delrio v. Wilkie, No. 17-4220 (U.S. Vet. App. December 19, 2019). Moreover, even if the Veteran now contends an earlier effective date is warranted for the establishment of service connection for her pulmonary embolism and/or other disabilities, there is no basis for a free-standing earlier effective date claim from a matter addressed in a prior, final and binding, rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board further notes that the January 10, 2013, effective date of service connection for the pulmonary embolism and headaches appears consistent with the law and evidence of record. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). The Board acknowledges that the Veteran testified at her April 2020 hearing that she filed her initial service connection claim for pulmonary embolism prior to January 2013, and indicated it was some time in 2008/2009. Further, the record confirms she filed a VA Form 21-526 in March 2007 seeking service connection for pulmonary embolism. Nevertheless, that claim was denied by an August 2007 rating decision. Although the Veteran initiated an appeal to that denial, she did not prefect it by filing a timely Substantive Appeal after a Statement of the Case (SOC) was promulgated on that issue in September 2010. See 38 C.F.R. §§ 20.200, 20.302. Similarly, service connection was denied for headaches by a November 2010 rating decision; the Veteran was informed of that decision and did not appeal. Id. Moreover, the Board finds that new and material evidence sufficient to reopen these claims was not physically or constructively of record within the appeal period of that decision, nor does the Veteran contend otherwise. See Bond, supra; Buie, supra. Accordingly, these denials are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. In cases of a prior, final denial the effective date for a subsequent grant of service connection cannot be earlier than the date of receipt of the application to reopen. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Following the prior denials of service connection for pulmonary embolism and headaches, a review of the record does not reflect the Veteran submitted an application to reopen prior to January 10, 2013. In light of the foregoing, the only basis for the Veteran to be awarded an effective date based on the earlier claim of service connection for pulmonary embolism, she has to show clear and unmistakable error (CUE) in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Here, the Veteran’s attorney did indicate at the April 2020 hearing that an earlier effective date from 2013 to 2008 due to CUE based upon the evidence already before them. Transcript p. 13. However, the Veteran did not specify which error was committed in the prior denial of service connection for pulmonary embolism and/or headaches that had it not been made would have changed the outcome in the August 2007 and/or November 2010 rating decisions; nor with respect to the effective dates assigned by the March 2014 and April 2014 rating decisions. The Board further notes that the Court has emphasized that simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, supra. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Id. It must be remembered that there is a presumption of validity to otherwise final decisions, and that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. In light of the foregoing, the Board finds that the Veteran has not raised a valid CUE claim with respect to the August 2007 denial of service connection for pulmonary embolism; the November 2010 denial of service connection for headaches; nor the effective dates assigned by the March 2014 and/or April 2014 rating decisions. Moreover, as stated above, the January 10, 2013 effective date for the pulmonary embolism and headaches in the March 2014 rating decision appears consistent with the applicable law and facts of this case. The Board also finds that the resolution of the other appellate claims for higher ratings for the service-connected pulmonary embolism and unspecified anxiety disorder would not affect the outcome of the present claim for an earlier effective date. Simply stated, even if the Veteran is assigned higher ratings for these disabilities it would not change the effective date of service connection for these disabilities. Regarding the claim of service connection for lupus, as indicate above the Veteran is contending this disability is secondary to the service-connected pulmonary embolism in accord with 38 C.F.R. § 3.310. Similar to the Court’s rationale in Delrio, supra, even if service connection is established for that disability the effective date thereof could not be earlier than that of the underlying service-connected disability upon which the claim of secondary service connection is based. Accordingly, the present appeal for an earlier effective date for the assignment of TDIU is not inextricably intertwined with the other appellate claims regarding the pulmonary embolism, unspecified anxiety disorder, and lupus. Moreover, as discussed below, the effective date for Chapter 35 (DEA) benefits is based upon the effective date for the TDIU. For all these reasons, the Board must conclude that there is no legal basis to award an effective date earlier than January 10, 2013 for the assignment of a TDIU due to service-connected disability in this case. Consequently, the benefit sought on appeal is denied. 2. Entitlement to an effective date earlier than January 10, 2013 for the establishment of basic eligibility for education benefits under Chapter 35 (DEA) The Veteran has essentially contended, to include at her April 2020 hearing, that she is entitled to education benefits from 2010 as she maintains that is when she initially filed a claim for such benefits. However, she also testified that claim was denied, and has not contended she appealed that denial. Regardless, as detailed below, the basic eligibility criteria for education benefits under Chapter 35 (DEA) were not met prior to January 10, 2013. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, the Veteran is still living. Therefore, the only legal basis for establishing basic eligibility for Chapter 35 benefits is her having a permanent and total service-connected disability. As stated above, the Board has concluded the Veteran is not entitled to such a rating (i.e., a TDIU) prior to January 10, 2013. Accordingly, there can be no award of basic eligibility for Chapter 35 DEA benefits prior to that date. Consequently, the appeal of this issue must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.