Citation Nr: 21002372 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-17 477 DATE: January 13, 2021 ORDER Entitlement to an effective date earlier than September 26, 2008 for an award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. Entitlement to an effective date earlier than September 26, 2008 for basic eligibility for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. REMANDED Entitlement to an initial rating greater than 70 percent for PTSD is remanded. FINDINGS OF FACT 1. The Veteran’s sole service-connected disability of PTSD, on which his TDIU rating is based, was granted effective September 26, 2008. 2. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 arose on September 26, 2008. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 26, 2008, for the award of TDIU are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.340, 3.341, 4.16. 2. The criteria for an effective date earlier than September 26, 2008, for the award of basic eligibility to DEA benefits under Chapter 35 are not met. 38 U.S.C.A. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.157, 3.341, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 70 percent rating effective November 23, 2010; granted entitlement to a TDIU effective December 23, 2014; and granted basic eligibility for DEA benefits effective December 23, 2014. This matter was previously before the Board in April 2020 at which time the Board granted an earlier effective of September 26, 2008 for the award of PTSD; remanded the issue of entitlement to a rating greater than 70 percent for PTSD to the AOJ; and deferred the earlier effective date issues for the award of a TDIU and DEA benefits. In a September 2020 rating decision, the AOJ granted an earlier effective date of September 26, 2008 for the award of the Veteran’s TDIU and DEA benefits. Earlier Effective Date for a TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disability or disabilities, from securing and following a substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In cases involving a claim for higher compensation, including TDIU claims, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); Hurd v. West, 13 Vet. App. 449 (2000). As noted above, during the pendency of this appeal for an effective date earlier than December 23, 2014 for the award of a TDIU, the AOJ granted an earlier effective date of September 26, 2008. September 26, 2008 is the date that the Veteran filed a claim for nonservice connection pension benefits, and it has been liberally construed by VA as the date that the Veteran filed a claim for compensation benefits for PTSD. In light of these facts, VA assigned the Veteran an effective date of September 26, 2008, for the grant of PTSD. See April 2020 Board decision. It is in consideration of the foregoing facts that a claim for an effective date earlier than September 26, 2008 for the award of a TDIU, either on a schedular basis or extraschedular basis, is precluded by law. This is so since having a service-connected disability is a prerequisite for a TDIU rating and since the Veteran’s sole service-connected disability of PTSD was not made effective until September 26, 2008. See 38 C.F.R. § 4.16; Sabonis v. Brown, (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). Earlier Effective Date for DEA Benefits The Board’s denial of an earlier effective date for the award of TDIU precludes the assignment of an effective date prior to June 19, 2015 for the award of 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). A total disability may be assigned where the Veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of July 26, 2008, for basic eligibility for DEA benefits is directly related to the award of a TDIU. Thus, since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, entitlement to an effective date earlier than July 26, 2008 is precluded by law. See 38 U.S.C. §§ 3501 (a)(1), 5113(a); 38 C.F.R. §§ 3.807 (a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND In an affidavit dated in April 2019, the Veteran reported that his PTSD symptoms continue to significantly impact his day to day activities. He also reported that he has been trying over the last six years to find medication and treatment that will help him with his PTSD. Since it has been approximately five years since he was last examined by VA for his PTSD, and since there is very little medical evidence on file that pertains to this disability since the last examination (in June 2016), the Veteran should be afforded a new VA examination in order to accurately assess the present severity of this disability. 38 U.S.C. § 5103A(d). Additionally, any outstanding private and VA treatment records that pertain to the Veteran’s PTSD should be obtained. 38 U.S.C. § 5103A(b), (c). The matter is REMANDED for the following action: 1. Follow all appropriate procedures to obtain any outstanding private and VA treatment records regarding the Veteran’s PTSD. 2. Schedule the Veteran for a VA examination with the appropriate medical personnel examiner to determine the current severity of his PTSD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. 3. After the above development has been completed, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the AOJ should send the Veteran and his representative a Supplemental Statement of the Case, provide an opportunity to respond, and then return the case to the Board for further appellate review. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.