Citation Nr: A21020343 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 210802-176835 DATE: December 21, 2021 ORDER An effective date as of January 28, 2020 for the award of the grant of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. An effective date as of January 28, 2020 for the award of the grant of basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. From January 28, 2020, the evidence demonstrates that his service-connected MDD disability precluded him from securing and following any substantially gainful employment. 2. The evidence demonstrates that January 28, 2020 is the earliest date the criteria for basic eligibility to DEA were met. CONCLUSIONS OF LAW 1. The criteria for an effective date as of January 28, 2020 for the award of the grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 2. The criteria for an effective date as of January 28, 2020 for the award of the grant of DEA under 38 U.S.C. Chapter 35 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1990 to March 1999. By way of history, in a May 2021 rating decision, the Regional Office (RO) granted entitlement to a TDIU, effective March 30, 2021 and granted basic eligibility for DEA benefits, effective March 30, 2021, the date of receipt of the formal claim for a TDIU via VA Form 21-8940. In August 2021 the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and elected the Direct Review option. The Veteran perfected an appeal as to the effective date assigned for both the TDIU and DEA benefit awards. As the Veteran has selected direct review, the Board will base its decision on the evidence of record at the time of the rating decision on appeal. 38 C.F.R. §§ 20.300, 20.301. 1. Entitlement to an effective date earlier than March 30, 2021 for an award of the grant of a TDIU The Veteran asserts that he warrants an effective date back to January 28, 2020 for the grant of a TDIU. A TDIU is considered a rating and not a disability. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015, including this claim on appeal. Id. at 57,686. Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2019). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155 (b) (2019). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). When determining the appropriate effective date for an award of a TDIU, whether on a schedular or extraschedular basis, the effective date of such an award cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of a TDIU is predicated. Delrio v. Wilkie, 32 Vet. App. 232, 247-48 (2019). Turning to the merits of the case, as discussed above the effective date for the award of entitlement to a TDIU is either the date of claim or the date entitlement arose, whichever is later in time. 38 C.F.R. § 3.400 (o)(1). Concerning the date of claim, VA received the Veteran's intent to file a claim on January 28, 2020. In March 2020, VA received the Veteran's VA 21-526 EX, Fully Developed Claim for service connection for a mental disorder. In a May 2020 rating decision, service connection for major depressive disorder (MDD), claimed as a mental disorder was denied. In August 2020, VA received the Veteran's Decision Review Request; Higher-Level Review of the May 2020 rating decision that denied service connection for MDD. In a January 2021 rating decision, service connection for MDD was granted and a 70 percent initial rating was assigned, effective January 28, 2020, the date of the receipt of the Veteran's intent to file a claim for compensation. On March 30, 2021, VA received the Veteran's VA Form 21-8940 application for increased compensation based on unemployability (TDIU), claimed as due to his MDD. The Veteran filed a notice of disagreement via a VA Form 10182 with the assigned rating in May 2021, appealing the initial rating to the Board. In a May 2021 rating decision, a TDIU and DEA benefits were granted, effective March 30, 2021, the date of receipt of the formal claim for TDIU benefits. Based on the foregoing, the Veteran's first formal application for a TDIU was received on March 30, 2021. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice, 22 Vet. App. at 453-54 . As the Veteran's March 2021 application alleged that he was unemployable due to his MDD, the claim for a TDIU became part of the claim for an initial higher rating for MDD. Id. As the Veteran's claim for entitlement to a TDIU was inferred as part and parcel of his claim for an initial higher rating, the appellate period of the TDIU claim runs concurrent with that of the initial higher rating claim. See, e.g., Harper v. Wilkie, 30 Vet. App. 356 (2018). As such, the appropriate date of claim for entitlement to a TDIU is January 28, 2020, the date VA received the Veteran's claim for service connection for a mental condition, from which the initial higher rating claim for MDD stemmed. With the date of claim determined, the Board must now determine the date entitlement to a TDIU arose. 38 C.F.R. § 3.400 (o)(1). The date entitlement to a TDIU arose is the date on which the Veteran was unable to obtain or maintain substantially gainful employment as a result of a service-connected disability or combination of disabilities. 38 C.F.R. § 4.16 (a). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined 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." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the U.S. Census Bureau. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. Prior to his service, the Veteran received a bachelor's degree in Geography. In 2004 he received an Engineering license class A which allowed him to perform contracted work on infrastructures. The Veteran owned his own engineering company until 2007. He worked as a government contractor from 2012 to 2015 and received a C-8 electrical contractor's license in 2016. He then worked as an independent engineering contractor and the last job he had was overseeing the construction of a rehabilitation facility from 2018 to August 2019. Since January 2020 the Veteran has continued to attempt to secure construction job bids but did not perform any work activity or earn any income because none of his contracts were approved. In a May 2020 VA DBQ, a psychologist indicated that the Veteran was working as an independent contractor doing engineering. February 2020 VA treatment records indicate that the Veteran felt depressed, had a decreased appetite and low energy, experienced trouble concentrating and sleep disturbances, felt like he was in a fog, had a flat affect and slowed speech, had frequent panic attacks and avoided methods of communication like his phone, mail, or email because he was afraid of receiving bad news A February 2020 disability benefits questionnaire (DBQ) by a private psychologist indicates that the Veteran was afraid of mail and email and feels paranoid throughout the day, has trouble focusing, lacks motivation, and experiences intermittent inability to perform activities of daily living. In a March 2020 statement, the Veteran indicated he was in a state of continuous anxiety that developed into daily panic attacks and insomnia. On his March 2021 application for TDIU the Veteran stated that he last worked full time in 2019 due to his disability. He indicated that he was self employed in construction sales from March 2015 to the present for 20 hours per week. He lost two days per week due to illness. His highest gross earnings per month was one thousand dollars. He remarked that he has not been able to secure any construction contracts due to his disability. He has extreme difficulty trying to complete bids for upcoming work because of an inability to focus on complex tasks. He gets very nervous and "panicky" and has trouble explaining solutions to potential customers. Also, he had a couple outbursts on job walks because of the ridiculous requirements put on small business. In an April 2021 vocational assessment report by a certified rehabilitation counselor, the Veteran had limited social interaction, avoided crowded areas, became easily irritated and frustrated with others, and tended to isolate. The report noted that the Veteran has 2 to 3 panic attacks per week, anxious thoughts, intrusive thoughts, impaired focus, and was hypervigilant. The April 2021 report additionally indicated that the Veteran was depressed, experienced lack of motivation, spent most of his time in bed, had trouble sleeping, and found basic household chores difficult due to his fatigue, impaired concentration, and lack of motivation. The rehabilitation counselor stated that the Veteran misses important information required in the documentation after the submission of his bids for contracts, even while using a checklist. He opined that it was at least as likely as not that since January 2020 the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected condition. In a July 2021 statement, the Veteran asserted that while he has continued to attempt to secure construction job bids he has not been approved for any contracts or earned any income since January 2020. He related that he experienced significant difficulty completing bid documentation and working on the computer due to his service-connected psychiatric limitations. Taking into consideration the totality of the evidence, the Board finds that the evidence supports that since January 28, 2020, when the Veteran's service-connected MDD with anxious distress and secondary alcohol use disorder was granted and assigned an initial 70 percent disability rating, such disability has been so debilitating as to preclude him from securing and following any substantially gainful employment. Accordingly, the criteria for entitlement to a January 28, 2020 effective date for the assignment of a TDIU are met, and the claim is granted. 2. Entitlement to an effective date earlier than March 30, 2021 for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 The Veteran is seeking an effective date prior to March 30, 2021 for basic eligibility to DEA under 38 U.S.C. Chapter 35. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113 (a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(b)(3). In the case of a veteran who is alive, the conditions for basic eligibility to DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body 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). A permanent 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). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). Given the Veteran's entitlement to an earlier effective date of January 28, 2020 for his TDIU, the Board must assign the DEA benefits the same effective date. The grant of DEA is contingent upon a finding of total and permanent disability, which means his DEA claim is derived from his TDIU claim. 38 C.F.R. § 3.807(a). As such, the award of both benefits must share the same effective date. The criteria for entitlement to an effective date of January 28, 2020 for basic eligibility for DEA under Chapter 35, Title 38, United States Code, are therefore met. In summary, resolving all reasonable doubt in favor of the Veteran, his claim for an effective date as of January 28, 2020, but no earlier, for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.