Citation Nr: 21066554 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-48 415 DATE: November 1, 2021 ORDER Entitlement to an effective date of September 27, 2007, for a grant of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an effective date prior of September 27, 2007, for basic eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. Beginning September 27, 2007, the Veteran's service-connected disabilities render him unable to obtain or maintain substantially employment. 2. Beginning September 27, 2007, the Veteran has had a permanent total service-connected disability. CONCLUSIONS OF LAW 1. Beginning September 27, 2007, the criteria for TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. Beginning September 27, 2007, the criteria for entitlement to DEA are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1971 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. By way of background, this matter was before the Board in June 2019, at which time the Board issued a decision denying an effective date prior to November 24, 2009, for the grant of a TDIU and for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (the Court). In a May 2020 Order, the Court granted the VA General Counsel's and the Veteran's Joint Motion for Remand (JMR). The Board's June 2019 decision was subsequently vacated and the Veteran's claim for an effective date prior to November 24, 2009, for the grant of a TDIU and for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 was remanded to the Board for readjudication in compliance with the JMR. Specifically, the JMR called for the claim to be remanded because the Board erred by providing an inadequate statement of reasons or bases for its denial of an effective date prior to November 24, 2009, for the grant of a TDIU and for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35. The matters were most recently before the Board in October 2020, at which time they were remanded for further development; specifically, the matters were remanded for referral to the Director of Compensation for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 1. Entitlement to an effective date prior to November 24, 2009 for grant of TDIU The Veteran seeks entitlement to earlier effective dates for the awards of TDIU and DEA, which are currently in effect as of November 24, 2009. The Veteran has asserted, through his attorney, that September 27, 2007 is the proper effective date. See February 2016 and October 2021 Correspondence. In this case, prior to November 24, 2009, the Veteran does not meet the schedular threshold criteria for a TDIU. Service connection was in effect for the following disabilities: mood disorder, not otherwise specified (claimed as post-traumatic stress disorder) associated with gastroesophageal reflux disease (GERD) with Barrett's esophagus (claimed as acid reflux/hernia) at 10 percent from September 27, 2007, 30 percent from May 27, 2009, and 70 percent from August 24, 2012; gastroesophageal reflux disease with Barrett's esophagus (claimed as acid reflux/hernia) at 30 percent from September 27, 2007, 100 percent from October 3, 2007, 30 percent from December 1, 2007, and 60 percent from November 24, 2009; internal hemorrhoids at 20 percent from March 11, 2009; bilateral pes planus with calcaneal spurs (claimed as a bilateral foot disability) at 10 percent from September 27, 2007; varicose veins, left leg at 10 percent from September 27, 2007; and varicose veins, right leg at 10 percent from September 27, 2009. The Veteran's combined evaluation for compensation has been assigned as 60 percent from September 27, 2007; 100 percent from October 3, 2007; 60 percent from December 1, 2007; and 70 percent from March 11, 2009. As such, with the exception of the time period from October 3, 2007 to November 30, 2007, the Veteran did not meet the threshold requirement for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to November 24, 2009. Nevertheless, when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b) (providing that "all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled"). In this regard, the Board notes that neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Rather, the regulation requires that, in cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above contained in 38 C.F.R. § 4.16(a), the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). As discussed above, pursuant to the Board's October 2020 remand, the AOJ referred the claim to the Director of Compensation for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to November 24, 2009. In May 2021, the Director of Compensation Service issued a decision that found that TDIU on an extra-schedular basis prior to November 24, 2009, was not warranted. The Director of Compensation Service concluded that the evidence does not show that impairment due to service-connected disabilities would preclude gainful employment prior to November 24, 2009. VA continued its denial for both issues that same month in a Supplemental Statement of the Case (SSOC). The Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU because the United States Court of Appeals for Veterans Claims (Court) has determined that the Director of Compensation Service's decision is in essence a decision by the AOJ and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran was entitled to TDIU under 38 C.F.R. § 4.16(b) prior to November 24, 2009 and may award a TDIU on an extraschedular basis if appropriate. As will be explained, following a thorough review of the record, the Board finds that the Veteran's service-connected disabilities did prevent him from obtaining or maintaining substantially gainful employment consistent with his education and experience prior to November 24, 2009. The evidence of record demonstrates that the Veteran retired in March 2003. See October 2021 VA Form 21-4192. Of note, the Veteran reported that he took an early retirement from his job with the railroad when the railroad was bought out and he was faced with the decision to take an early retirement or be terminated. See March 2014 Vocational Consultant report. In his formal claim for a TDIU, the Veteran reported that it was all of his service-connected conditions, to include mood disorder, GERD, internal hemorrhoids, bilateral pes planus, and varicose veins of the bilateral legs that prevented him from obtaining and maintaining substantially gainful employment. The Veteran contended that the date his disability affected his full-time employment was March 2003, the date he last worked full time was March 2003, and the date he became too disabled to work was March 2003. See October 2021 VA Form 21-8940. The Veteran was afforded a June 2008 VA examination that indicated the Veteran had mild impairment of daily activities due to GERD with Barrett's esophagus including mild symptoms of mid-epigastric burning and pain and mild dysphagia with occasional reflux into the esophagus. In July 2009, the Veteran underwent VA examinations that indicated mild impairment of daily activities due to varicose veins including aching and fatigue after prolonged standing or walking, and moderate impairment of physical activity due to pes planus due to symptoms of pain with use of the feet. Outpatient mental health treatment notes prior to an August 2012 VA examination indicated symptoms of the Veteran's mood disorder including depression, irritable mood, sleep disturbance, loss of interest in activities, poor concentration, and feelings of worthlessness, with improvement of symptoms on medication. The record includes a March 2014 Vocational Assessment performed by E.C., a Vocational Consultant. Based upon a review of the Veteran's claims file and a telephone conversation with the Veteran, the private vocational consultant stated that it was his opinion within a reasonable degree of vocational certainty that the Veteran's service-connected conditions have resulted in his inability to secure and follow a substantially gainful occupation since leaving the railroad in 2003. E.C. noted that the treatment records, which extend back to at least 1998, provide a history pertaining primarily to the Veteran's progression of service-connected conditions and residual loss of functioning, and his difficulty with occupational and activities of daily living. He noted that the Veteran had testified that he had daily stomach pain, difficulty eating and swallowing, constipation, diarrhea, and morning nausea that disrupts his entire day since December 2007. He discussed the findings of the Veteran's VA examinations in June 2008, July 2009, and September 2011 regarding his GERD, leg, and feet symptoms. He detailed his conversation with the Veteran regarding his difficulties with ambulation, fatigue, sleep, and his need to be near a bathroom. He noted the Veteran's report of having exhausted all available sick time during his last year of work due to service-connected conditions; his report of difficulty operating the train due to frequently needing to use the restroom, but being unable to do so as a driver, which resulted in severe discomfort throughout the day; and his report of his feet and leg conditions making it difficult for him to be on his feet for longer than 30 minutes or perform anything other than very short light tasks. The vocational consultant noted that the Veteran's medical reports documented his orthopedic and intestinal symptoms as well as their effect on daily living and basic activities. He further explained that the Veteran's ambulation difficulties would render him physically incapable of performing any job beyond the sedentary exertional level, and that he had none of the skills, education, or clerical aptitude necessary for sedentary occupations. As this opinion was based on a specific review of the claims file and the Veteran's reporting to the vocational consultant, the Board finds that it is probative. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence demonstrates that the combined effects of the Veteran's service-connected disabilities render him unable to secure or maintain substantially gainful employment consistent with his educational and work history beginning September 27, 2007, when he was found entitled to service connection for mood disorder, not otherwise specified, associated with GERD with Barrett's esophagus; GERD with Barrett's esophagus; bilateral pes planus with calcaneal spurs; and varicose veins in the bilateral legs. Prior to this date, the Veteran was not service connected for any disabilities. Therefore, a TDIU cannot be granted prior to September 27, 2007, as a matter of law. See Delrio v. Wilkie, 32 Vet. App. 232 (2019) (the effective date of an extraschedular award of TDIU cannot be earlier than the date of service connection for the disability or disabilities upon which the TDIU award was based). In light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board is satisfied that a TDIU is warranted on an extraschedular basis from September 27, 2007. See 38 U.S.C. § 5107; 38 C.F.R. § 4.16(b). 2. Entitlement to an effective date prior to November 24, 2009 for grant of DEA Benefits For the purposes of educational assistance for dependents under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (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. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Because the Board herein has awarded an effective date of TDIU beginning September 27, 2007, the Veteran likewise is entitled to DEA beginning that date by virtue of having a permanent total service-connected disability. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, Associate 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.