Citation Nr: 21001381 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-36 329 DATE: January 7, 2021 REMANDED Entitlement to an effective date earlier than February 2, 2017 for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), to include on an extraschedular basis is remanded. Entitlement to an effective date earlier than February 2, 2017 for eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 (DEA) is remanded. REASONS FOR REMAND The Veteran had active service from August 1963 to February 1964 and from February 1964 to April 1967. 1. Entitlement to an effective date earlier than February 2, 2017 for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), to include on an extraschedular basis is remanded. 2. Entitlement to an effective date earlier than February 2, 2017 for eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 (DEA) is remanded. The Veteran’s representative asserts that the Veteran is entitled to the same effective date for his TDIU and DEA benefits as his initial claim for service-connection for post-traumatic stress disorder (PTSD), or February 12, 2015. The Board notes that a September 2015 rating decision granted service connection for PTSD with an effective date of February 12, 2015, and a May 2018 rating decision granted an increased initial rating of 70 percent for PTSD as well as granted TDIU and DEA benefits with an effective date of February 2, 2017. The Veteran subsequently appealed the effective date of TDIU and DEA benefits. The Veteran’s representative also contends that the Veteran has been both unemployed and underemployed as a result of his service-connected PTSD symptoms. The evidence of record reflects that the Veteran was employed as a favor by his brother-in-law since 2006, but he was unable to keep the position and has not worked since. A September 2015 PTSD VA examination does not address employability directly but does detail the Veteran’s unstable work history in support of the Veteran’s assertions of unemployability. As of February 12, 2015, the requested effective date, the Veteran was service-connected for PTSD at 50 percent; temporomandibular joint disorder at 10 percent; and loss of teeth rated as noncompensable. His combined rating was 60 percent, and he was not eligible for a TDIU at that time. The Veteran was not schedularly eligible for a TDIU until February 2, 2017, when he was granted a 70 percent disability rating for service-connected PTSD. Thus, a TDIU may only be assigned prior to February 2, 2017 on an extraschedular basis. 38 C.F.R. § 4.16 (b). Though the evidence of record suggests that the Veteran’s service-connected PTSD symptoms may have rendered him unemployable or underemployed prior to February 2, 2017, referral to the Director of the Compensation and Pension Service is required first as VA cannot assign an extraschedular TDIU in the first instance. Id. Entitlement to an earlier effective date for DEA benefits is intertwined with the TDIU issue and adjudication of the DEA issue is deferred at this time. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to an earlier effective date for TDIU and DEA benefits based on the Veteran’s service-connected disabilities to the Director of the Compensation and Pension Service for extraschedular consideration. Place a copy of the Director’s decision in the claims file. 2. Then readjudicate the Veteran’s entitlement to an earlier effective date for a TDIU and DEA benefits based on the Veteran’s service-connected disabilities on an extraschedular basis. If the decision is unfavorable, issue a supplemental statement of the case (SSOC), provide a copy of the rating decision or SSOC to the Veteran and his representative, and place a copy in the claims file. Allow a requisite time period to respond SSOC before processing for return to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.