Citation Nr: A21020261 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200515-84843 DATE: December 20, 2021 ORDER Entitlement to an effective date for a total disability rating based on individual unemployability (TDIU) prior to March 25, 2019 is denied. REMAND Entitlement to past-due benefits by the grants of basic eligibility to Dependents' Educational Assistance (DEA) and TDIU effective March 25, 2019 is remanded. FINDING OF FACT The Veteran first met the schedule criteria for TDIU on March 25, 2019, and the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities prevented her from obtaining and maintaining employment prior to that date. CONCLUSION OF LAW The criteria for to an effective date for TDIU prior to March 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to August 1988. She also had periods of active duty for training (ACDUTRA) January 2001 to October 2001, February 2003 to August 2003, and July 2006 to December 2009. On August 23, 2017, the President signed into law the Veteran's Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA) decision on their claim to seek review. In a March 2020 rating decision and notification letter, VA granted TDIU and eligibility to Dependents' Education Assistance, effective March 25, 2019. VA's notification letter listed the amount of past-due benefits, which was computed from the effective date of the award through the date of the decision, totaled $0.00. The Veteran, through counsel, filed Form 10182 Notice of Disagreement (NOD) under the AMA Direct Review docket in May 2020. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to an effective date for TDIU prior to March 25, 2019 is denied. The Veteran contends an effective date prior to March 25, 2019 is warranted. The Board disagrees. Under Chapter 51 of Title 38 of the United States Code, the effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of VA 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. Rating boards are to refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. § 4.16 (b). The Veteran is service connected for a psychiatric disorder (50 percent), right knee chondromalacia (0 percent prior to October 25, 2019 and 20 percent thereafter), right ankle sprain (0 percent prior to October 10, 2012, 10 percent from October 10, 2012, and 20 percent from March 25, 2019), left knee chondromalacia (0 percent prior to October 25, 2019 and 20 percent thereafter), lumbar spine degenerative disc disease (10 percent from October 10, 2010), and hypertension (0 percent). She first met the schedular criteria for entitlement to TDIU on March 25, 2019. The Veteran did not meet the schedular prior to March 25, 2019. In any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director of Compensation, for extra-schedular consideration referral under 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether it is ascertainable that from March 25, 2018, the Veteran's service-connected disabilities worsened to the extent that they rendered her unemployable and referral for extraschedular consideration for TDIU is warranted. The Board notes that the Veteran was first service connected for an acquired psychiatric disorder beginning March 25, 2018, which is the sole disability for which entitlement to TDIU was indicated as determined by the evidence of record. Prior to March 25, 2018, the Veteran was rated under a psychiatric diagnostic code but for insomnia only. The record shows the Veteran has an associate degree in paralegal studies and an associate degree in medical office administration. Her employment experience consists of staff member at Job Corps, security officer, plant warehouse worker, county tag office worker, National Guard supply center worker, USPS worker, and data specialist. The Veteran underwent a VA examination January 2019 as part of her application for service connection for PTSD. The VA examiner indicated that the Veteran reported that she stopped working because of her service-connected lumbar spine disability. The Veteran stated that but for her spinal disability she would have remained employed and working. The Veteran reported her psychiatric disability never affected her work. The relevant medical records associated with the file show that the Veteran did not have any physical limitations or barriers to learning. However, she reported experiencing lower back disabilities, difficulty sleeping, and difficulty walking. See October 2018 VA treatment note. In light of the above, the Board finds that it is not ascertainable that the Veteran's service-connected disabilities worsened to the extent that they rendered her unemployable such that referral for extraschedular consideration for TDIU would be warranted for the period prior to March 25, 2019. In this regard, the preponderance of the evidence reflects that the functional impairment from the Veteran's service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment prior to March 29, 2019. Given the Veteran's associates degrees in paralegal studies and medical office administration, the lack of physical limitations or barriers to learning, the Board finds that she would have been able to obtain or maintain various substantially gainful occupations, such as in medical office administration or at a call center, which did not require much walking and would have provided her with a living. Moreover, the Board notes that a schedular rating itself is recognition that a claimant's industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. 38 C.F.R. § 4.1; Van Hoose, supra. Although the Veteran's service-connected disabilities may have hindered some aspects of employment, a compensable schedular rating of less than 100 percent implies a degree of interference with employment that would not preclude a particular claimant from securing and following all substantially gainful employment. Accordingly, the Veteran is in receipt of the earliest effective date under VA laws and regulations, and the appeal must be denied. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In reaching this determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to past-due benefits by the grants of basic eligibility to Dependents' Educational Assistance (DEA) and TDIU with the assignment of a 100 percent rating, effective March 25, 2019 is remanded. The Veteran asserts that VA did not properly calculate the amount of past-due benefits owed stemming from the March 2020 rating decision awarded basic eligibility to DEA and TDIU, effective March 25, 2019. Agency regulations provide that when the benefit granted on appeal, or as the result of a readjudicated claim, is service connection for a disability, the past-due benefits will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. 38 C.F.R. § 14.636(h)(3)(i). In this instance, the Veteran's combined evaluation for compensation from December 16, 2009 to March 25, 2019 was 60 percent. By virtue of a December 2019 rating decision increased the Veteran's disability ratings for her right ankle, right knee, and left knee, the Veteran's combined evaluation increased to 80 percent. Then, the Veteran was granted a total disability rating in the March 2020 rating decision, effective March 25, 2019. An Award Report was generated with the rating decision on appeal showing an award of $15,748.24. The March 18, 2020 notification letter indicates, however, that the amount of past-due benefits for the award of DEA benefits and TDIU is $0.00. The notification letter stated this amount was computed from the effective date of the award through the date of the decision. The Board may remand AMA appeals to the AOJ to correct regulatory or statutory errors if there is a reasonable possibility of aiding the veteran's claims. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 189-90 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.802 (a)). Based on the currently available information, it is unclear whether the Veteran received the full amount of past due benefits owed for the claimed period. Therefore, a remand is necessary for a complete audit to ascertain whether the Veteran was paid the correct amount of past due benefits. Past due benefits must be calculated from the effective dates of the grant for award of DEA benefits and TDIU; March 25, 2019 to March 17, 2020. The matter is REMANDED for the following action: Complete and issue an audit/accounting of the past-due benefits due to the Veteran from grants of DEA benefits and TDIU, effective March 25, 2019. Past due benefits must be calculated from the effective dates of the grant for award of DEA benefits and TDIU; March 25, 2019 to March 17, 2020. Provide the Veteran and her attorney a copy. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.