Citation Nr: 21065083 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-24 926A DATE: October 25, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted with an effective date of November 26, 2009. Entitlement to an effective date of November 26, 2009 for Chapter 35 Dependents' Education Assistance (DEA) is granted. FINDINGS OF FACT 1. From November 26, 2009, the evidence of record is at least in equipoise that the Veteran's combination of service-connected disabilities prevents him from obtaining or maintaining substantial gainful employment. 2. This decision establishes an effective date for the grant of TDIU of November 26, 2009. Basic eligibility to DEA benefits under 38 U.S.C. chapter 35 is established from that date. CONCLUSIONS OF LAW 1. From November 26, 2009, the criteria for a TDIU due to the Veteran's combination of service-connected disabilities have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16. 2. The criteria for an effective date of November 26, 2009 for eligibility for chapter 35 DEA benefits have been met. 38 U.S.C. § 3512; 38 C.F.R. §§ 3.807(d), 21.3021, 21.3041. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from November 1993 to October 1999, and on active duty in the Army from May 2007 to November 2009. 1. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 27, 2012 A June 2015 rating decision granted entitlement to a total disability rating due to individual unemployability (TDIU) with an effective date of December 27, 2012. The Veteran contends that his service-connected disabilities have prevented him from securing or following a substantially gainful occupation as a result of service-connected disabilities since November 26, 2009, the day after the Veteran's separation from the Army. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the criteria to be eligible for a schedular TDIU under 38 C.F.R. § 4.16(a) since November 26, 2009. Since that date, the Veteran has been entitled to service connection for: major depressive disorder, rated as 30 percent disabling as of November 26, 2009; obstructive sleep apnea, rated as 50 percent disabling since November 26, 2009; type II diabetes, rated as 20 percent disabling since November 26, 2009; and bilateral plantar fasciitis, rated as 10 percent disabling since November 26, 2009. During the period on appeal, the Veteran was also entitled to service connection for tinnitus rated as 10 percent disabling as of June 23, 2010, lumbar spine strain, rated as 10 percent disabling as of June 23, 2010, and cervical spine disability, rated as 10 percent disabling as of June 23, 2010. The Veteran's combined rating from November 26, 2009 to November 26, 2012 was 80 percent. The Board notes that the Veteran was found entitled to a temporary 100 percent rating for major depressive disorder as of November 26, 2012 to January 1, 2013, along with special monthly compensation (SMC). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran was already awarded SMC since November 26, 2012, and so he is already in receipt of maximum benefits for that period, and a TDIU is moot for that period. However, the Board must still consider whether a TDIU is warranted for the period prior to November 26, 2012. In the June 2011 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stated that he has two years of college education, and that he has not worked since his separation from the Army. He stated that he became too disabled to work on November 25, 2009, the day of his separation from service. The Veteran filed another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability in November 2013. The Veteran stated that he has two years of college education, and that he has not worked since his separation from the Army. He stated that he became too disabled to work on August 1, 2010. The Veteran stated that he attended classes at the University of Phoenix after separation from service, but dropped out prior to completion. The Veteran reported working for a medical holdings company from May 2004 to May 2007, which earned him $1000 highest gross earnings per month. In March 2011, an Administrative Law Judge (ALJ) from the Social Security Administration (SSA) found that the Veteran was unable to work due his disabilities as of August 1, 2010. Although SSA and VA use different frameworks to determine disability, the SSA evidence is probative of whether the Veteran would be able to work due to his service-connected disabilities. The medical and psychiatric evidence of record shows that the Veteran struggled with mental health symptoms and was unable to secure employment since separation. In January 2010, the Veteran established care with a VA mental health clinic. The Veteran reported feeling depressed due to unemployment and being away from his family. The Veteran reported fleeting thoughts of suicide but denied any intent because of his children. An undated SSA psychiatric assessment found that the Veteran's mental health condition would cause mild restrictions in activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, and pace. An April 2010 private physician record notes that the Veteran reported depression, back pain, and type 2 diabetes. At an October 2010 VA mental examination, the Veteran reported experiencing depression symptoms without remission since separation from service. The Veteran reported symptoms including low energy, irritability, decreased appetite with weight loss of about 15 pounds in the past year, sleeping problems, concentration problems, decision-making problems and occasional recurrent thoughts of death and decreased libido compared to before the onset of his depression. The Board finds that there is competent and probative evidence which shows that the Veteran's combination of disabilities would significantly impact his ability to keep up with the physical and mental demands of a work environment. The Board therefore finds that there is adequate medical evidence indicating that the Veteran's service-connected disabilities, most significantly his major depressive disorder, prevented him from being able to maintain any gainful employment since November 26, 2009. The Board acknowledges that the VA examiners came to different medical opinions regarding the Veteran's occupational limitations. However, although a medical opinion is probative, it is not dispositive and is not required. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The ultimate responsibility for the determination of occupational limitations is placed with VA adjudicators and not upon a medical examiner. Id. Considering the Veteran's education and occupational background, and assessing the effect of the Veteran's combination of service-connected disabilities and affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted as of November 26, 2009. 38 U.S.C. § 5107 (b). 2. Entitlement to an effective date prior to May 11, 2021 for Chapter 35 Dependents' Education Assistance (DEA) Since the effective date for DEA benefits is directly related to a finding that the Veteran has a total disability that was permanent in nature, and because an earlier effective date for TDIU has been found herein, an effective date of November 26, 2009 for Chapter 35 benefits is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.