Citation Nr: 21075762 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-46 280 DATE: December 21, 2021 ORDER An earlier effective date of August 9, 2005, for the grant of a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. An earlier effective date of August 9, 2005, for basic eligibility to Chapter 35 dependents educational assistance (DEA) benefits is granted. FINDINGS OF FACT 1. The Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation since August 9, 2005. 2. The Veteran's application for TDIU was part of his claim of service connection for posttraumatic stress disorder (PTSD), which was filed on August 9, 2005. 3. The Veteran had a permanent and total disability effective August 9, 2005, when he was awarded TDIU. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met effective August 9, 2005. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. 2. The criteria for basic eligibility to DEA benefits have been met effective August 9, 2005. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.340, 3.341 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from September 1966 to December 1967. He served in the Republic of Vietnam and his military decorations included the Combat Action Ribbon and the Purple Heart. The Veteran died in 2020 and the appellant was substituted for the Veteran in this appeal in December 2020. In February 2020, the Board granted TDIU and basic eligibility to DEA benefits effective February 9, 2011, and denied effective dates prior to that date. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted the Parties' Joint Motion for Partial Remand (JMPR); vacated the February 2020 Board decision as the denial of earlier effective dates; and remanded the appeal. 1. Entitlement to an effective date prior to February 11, 2009, for the grant of TDIU. In December 2008, the RO granted service connection for PTSD effective August 9, 2005. In February 2009, the Veteran filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, asserting that his PTSD and his service-connected sinusitis and asthma prevented him from securing or following a substantially gainful occupation. He stated that he last worked in 1999. The August 2021 JMPR stated that "as a matter of law, a request for TDIU, or evidence of unemployability received within the year following a rating decision on an initial claim for service connection, is not a new claim for TDIU. Rather, it is part and parcel of the pending service connection claim." The JMPR stated that "the effective date for TDIU could be as early as the date of the Veteran's original service connection for PTSD claim in August 2005. . . ." 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 service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). On August 9, 2005, the effective date of the grant of service connection for PTSD, the Veteran had the same disabilities and ratings as he did on February 11, 2009; he had an overall rating of 70 percent and disabilities of the same body system, the respiratory system, which combined to 40 percent or greater. Therefore, the Veteran met the schedular criteria for TDIU effective August 9, 2005. Given the severity of the Veteran's respiratory disorders and his PTSD, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation since August 9, 2005, and an earlier effective date is granted. 2. Entitlement to an effective date prior to February 11, 2009, for basic eligibility to DEA benefits. Basic eligibility for DEA benefits exists if a Veteran has a permanent, total service connected disability. 38 U.S.C. §§ 3500, 3501. 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. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The Veteran had a permanent and total service-connected disability effective August 9, 2005, the date of the grant of TDIU. Therefore, an earlier effective date for the award of basic eligibility to DEA benefits is granted effective that date. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.