Citation Nr: 21001102 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 99-16 038A DATE: January 7, 2021 REMANDED Entitlement to an effective date prior to May 24, 2001 for a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to May 24, 2001 for Dependents Educational Assistance (DEA) benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 to May 1969. A March 2019 Board decision denied the Veteran’s claims for earlier effective dates for the award of TDIU and DEA benefits. This decision remanded the Veteran’s claims for increased ratings for left and right upper extremity disabilities. In October 2019, the U.S. Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMR), and partially vacated the March 2019 Board decision to the extent it denied effective dates prior to May 24, 2001 for TDIU and DEA eligibility. The JMR stated that the Board should consider whether the Veteran was entitled to an extraschedular TDIU prior to May 24, 2001 based on the combined effects of the Veteran’s service-connected disabilities. The Veteran’s claims for increased ratings for left and right upper extremity neuropathy/radiculopathy disabilities are not currently before the Board. With respect to these claims the Veteran has opted into the modernized appeals system. 1. Entitlement to an effective date prior to May 24, 2001 for TDIU. The Veteran contends that TDIU is warranted prior to May 24, 2001. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a claim for an earlier effective date for a TDIU. Hurd v. West, 13 Vet. App. 449 (2000). Here, the underlying TDIU claim is part and parcel of the Veteran’s claim for an increased initial rating for PTSD, thus, the earliest possible effective date for the Veteran’s TDIU claim is November 11, 1998, the date of his underlying service connection claim. See 38 U.S.C.§ 5110 ; 38 C.F.R. § 3.400. Thus, the question remains whether the substantive requirements for TDIU were satisfied at some point between November 11, 1998 and May 24, 2001. During the period on appeal, the Veteran had four service-connected disabilities; PTSD rated as 30 percent, migraine headaches rated at 30 percent, residuals of a right wrist fracture rated as noncompensable, and left cheek scar rated as noncompensable. Prior to May 24, 2001 the Veteran did not have any service-connected disabilities rated at 40 percent or more. Therefore, the Veteran did not meet the threshold percentage requirements for consideration of TDIU on a schedular basis. 38 C.F.R. § 4.16(a). On VA examination in April 1999 the Veteran reported migraine headaches that would last for several days. In an October 2000 letter a Vet Center counselor opined that the Veteran’s PTSD condition was severe and that it precluded any full-time or substantive employment. On VA neurological disorders examination in April 2001 the Veteran reported that his headaches were incapacitating, and that he could not function. In a July 2011 letter the Veteran’s VA treating psychologist stated that the Veteran had not been gainfully employed for approximately 17 years and his difficulty in maintaining employment was primarily due to this chronic symptoms of PTSD. The above evidence raises a reasonable possibility that the Veteran was unemployable because of his service-connected disabilities prior to May 24, 2001. Ray v. Wilkie, 31 Vet. App. 58, 66-67 (2019). As the Board cannot consider an extraschedular TDIU claim in the first instance, see Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Veteran’s TDIU claim is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. 2. An effective date prior to May 24, 2001 for DEA benefits. The currently assigned effective date of May 24, 2001 for basic eligibility for DEA benefits was directly related to the award of a TDIU. Since in the Veteran’s case eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, the claims for entitlement to an earlier effective date for DEA benefits and for an earlier effective date for the award of TDIU are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for an earlier effective date for DEA benefits must be remanded pending the development and readjudication of the claim for an earlier effective date for TDIU. The matters are REMANDED for the following action: Refer the Veteran’s claim of entitlement to a TDIU rating prior to May 24, 2001 to the Director of Compensation Service for consideration of TDIU on an extraschedular basis. The Director of Compensation Service should consider and address the April 2001 VA examination report that the Veteran’s migraine headaches were incapacitating, the October 2000 Vet Center counselor opinion that PTSD precluded any full-time or substantive employment, and the July 2011 VA psychologist letter opining that the Veteran had not been gainfully employed for approximately 17 years and his difficulty in maintaining employment was primarily due to his chronic symptoms of PTSD. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.