Citation Nr: A21020309 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210820-180071 DATE: December 21, 2021 ORDER An earlier effective date of August 7, 2009, for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the payment of monetary awards. An earlier effective date of August 7, 2009, for eligibility for Dependents' Educational Assistance (DEA) is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the claim for TDIU was part and parcel of the claims of service connection for lumbar strain, bronchial asthma and increased rating for posttraumatic stress disorder (PTSD) that was initiated on August 7, 2009. 2. Resolving reasonable doubt in the Veteran's favor, eligibility for DEA is warranted from August 7, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of August 7, 2009, but no earlier, for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 2. The criteria for entitlement to an effective date of August 7, 2009, but no earlier, for eligibility for DEA have been met. 38 U.S.C. §§ 1155, 3501, 3510, 5107, 5113; 38 C.F.R. §§ 3.340, 3.341, 3.400, 3.807(a), 4.3, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which implemented an October 2020 decision by the Board. Specifically, the November 2020 rating decision assigned an effective date of April 5, 2016, for the Board's award of TDIU benefits, and also established basic eligibility to DEA from that same effective date. to grant entitlement In the August 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal, as to the effective dates assigned in the November 2020 rating decision, and elected the Direct Review docket. 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. As an initial matter, the Board notes in the course of the Veteran's appeal for an earlier effective date for his award of TDIU and DEA benefits, his representative has argued that in correspondences dated in June 2010 and September 2016, the Veteran disagreed, respectively, with the initial 30 percent rating assigned for his service-connected PTSD as well as the effective date that was eventually assigned when his PTSD rating was increased to 50 percent. It was contended that if this effective date was retroactively awarded, the rating for TDIU and eligibility for DEA would correspondingly be affected. See November 2020 Correspondence. The Board notes that the June 2010 correspondence and the matter raised therein has not been addressed by the Agency of Original Jurisdiction (AOJ) nor was it addressed in the November 2020 rating decision. Therefore, the Board lacks jurisdiction to address the concerns raised by the Veteran's representative in his November 2020 Correspondence. The Board has, however, as a courtesy administratively notified the AOJ of this matter and requested that they address the June 2010 correspondence by reviewing the initial rating assigned for the Veteran's PTSD. The Veteran is advised that if he wishes to continue pursuing this matter after the Board's decision herein, he should follow-up with the AOJ as well. Entitlement to an earlier effective date for TDIU The Veteran is seeking an effective date earlier than April 5, 2016 for his TDIU. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, an exception is available when the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400(o)(2). Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of "substantially gainful employment," in Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The Court has held that a claim of entitlement to TDIU is part and parcel of an underlying increased rating claim, when raised during the open appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, VA received claims of entitlement to service connection for PTSD, lumbosacral strain, and bronchial asthma on August 7, 2009. In March 2010, service connection for PTSD was granted, rated 30 percent disabling from August 7, 2009. The Veteran submitted a notice of disagreement with "all issues outline in the VARO Rating Decision dated March 11, 2010," and stated that the symptomatology associated with the conditions service connected in that rating decision presented a greater degree of impairment than currently assigned, in June 2010. The Veteran's representative again submitted a request for an increased evaluation of the Veteran's PTSD in September 2014. In an April 2016 Board remand, it was noted that the issues of entitlement to an increased rating for PTSD and TDIU had been raised by the record in September 2014. These matters were referred to the AOJ for adjudication. Following an additional remand by the Board, in a March 2019 rating decision, the AOJ granted service connection for lumbar strain, rated 40 percent disabling from August 7, 2009, and for bronchial asthma, rated 30 percent disabling from August 7, 2009. The record at the time of the grant of service connection for PTSD included a report of a January 2010 VA examination that noted that the Veteran had been unemployed since 1984. In August 2019, the Veteran filed VA form 21-8940 indicated that he last worked full time in June 1984. Prior to March 24, 2015, notices of disagreement were not required to be submitted on a prescribed form. Reviewing the evidence in the light most favorable to the Veteran, the Board finds that the June 2010 submission acted as a notice of disagreement with the initial rating assigned for PTSD. As a result, the appeal period for the TDIU claim, as part and parcel of the higher rating claim for PTSD, extends back to the original claim date for PTSD on August 7, 2009. Rice 22 Vet. App. at 447. The Veteran repeated his claim for increased rating in September 2014, which was noted by the Board in the April 2016 remand. Moreover, the Veteran continued his claims of service connection for a lumbosacral spine disorder and bronchial asthma, which were granted by rating decision dated in March 2019. Those disorders were rated 40 percent disabling and 30 percent disabling, effective the date of claim, August 7, 2009. Therefore, the Veteran's combined evaluation of his service-connected disabilities as of August 7, 2009, was 70 percent. In a July 2019 vocational assessment, it was noted that the Veteran was unable to maintain substantially gainful employment as a result of his PTSD and lumbosacral spine disorder. The Board granted TDIU by decision dated in October 2020. As noted, the Veteran met the schedular criteria for consideration of TDIU as of August 7, 2009. His claim for TDIU was part of the claim for increased rating for PTSD that was initiated by the June 2010 notice of disagreement. Although the Board lacks jurisdiction to address the matter of the initial rating to be assigned for the Veteran's PTSD (as was explained above, in the Introduction), the Board does have jurisdiction to review the proper scope of the appeal period for the Veteran's TDIU claim. Reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board grants an effective date of August 7, 2009, for TDIU. Entitlement to an earlier effective date for eligibility DEA The Board also finds that August 7, 2009, is the appropriate date for basic entitlement to DEA for the following reasons. For the purposes of educational assistance 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. See 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. See 38 U.S.C.§ 5113. In this case, by virtue of the Board's award of an earlier effective date of August 7, 2009, for a TDIU, and because the effective date for DEA benefits is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, the Veteran is also entitled to an earlier effective date of August 7, 2009, for eligibility for Chapter 35 benefits. To that extent also, this appeal is granted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.