Citation Nr: A21020623 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200701-95834 DATE: December 29, 2021 ORDER For the period prior to September 6, 2013, a total disability rating based on individual unemployability (TDIU) is denied. For the period prior to September 6, 2013, entitlement to Dependents Educational Assistance (DEA) benefits under Title 38, U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. In a May 2012 rating decision, the RO determined that no new and material evidence had been received to reopen a previously denied claim. The Veteran did not appeal within one year from the May 2012 rating decision, and the decision became final. 2. The Veteran did not have any pending appeal or appeals prior to September 6, 2013 and, therefore, a TDIU was not part of a pending appeal. 3. The Veteran's awards of service connection for a low back disability and associated bilateral radiculopathy have been in effect since September 6, 2013, the date when his claim to reopen a previously denied claim was received and continuously prosecuted. 4. The Veteran has been found to have a total and permanent evaluation on the basis of a TDIU due to service-connected disabilities in effect since September 6, 2013. Accordingly, that is earliest possible date for entitlement to a TDIU. 5. The Veteran has been found to have a permanent and total evaluation due to service-connected disabilities effective September 6, 2013. Accordingly, that is earliest possible date for eligibility for DEA benefits under Chapter 35 as well. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 6, 2013, for the award of a TDIU, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 20.302. 2. Prior to September 6, 2013 the criteria for entitlement to DEA benefits under Chapter 35, are not met. 38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1970. The case is on appeal from a May 2019 rating decision. In a July 2020 notice of disagreement (NOD), the Veteran requested a Decision Review by a Veterans' Law Judge and elected the Direct Review Lane pursuant to the Appeals Modernization Act (AMA). 38 C.F.R. § 20.202(b)(1). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A TDIU prior to September 6, 2013. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court)indicated that a claim for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. The distinction between the two is important for purposes of assigning an effective date for an award of compensation. Effective March 24, 2015, VA amended its adjudication regulations to require claimants to submit claims for benefits administered under VA laws on forms prescribed by the agency. See 79 Fed. Reg. 57660, Standard Claims and Appeals Forms (Sept. 25, 2014). However, prior to such amendments, 38 C.F.R. § 3.155 provided that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. In a July 2020 brief, the Veteran's representative attorney stated that as the Veteran's TDIU is based on his service-connected back disability and bilateral radiculopathy, the effective date for the Veteran's TDIU should be no later than September 16, 2005, the date when the Veteran began prosecuting his claim of service connection for a back disability. The Veteran's attorney argues that the Veteran filed a claim to reopen his claim for entitlement to service connection for a back injury on September 16, 2005. VA denied the claim by a December 2005 rating decision. On September 8, 2006, within one year from the September 2005 rating decision, the Veteran filed a subsequent claim to reopen. The representative further noted that VA should have liberally construed the Veteran's September 2006 claim to reopen as an NOD with respect to the December 2005 rating decision as the Veteran was acting pro se and, therefore, the initial September 2005 claim to reopen should have remained in appellate status. Thus, the question before the Board is whether a timely NOD was received within one year from the December 2005 rating decision and if so, whether the evidence supports an earlier effective date prior to September 6, 2013 for the award of a TDIU as part of the September 2005 claim to reopen for a lumbar spine disability. The Board has considered the attorney's arguments in support of the claim. Nonetheless, for the reasons set forth below, finds that September 6, 2013 is the earliest possible date for the award of a TDIU. By way of background, in September 2005, the Veteran filed an informal claim to reopen a previously denied claim of service connection for a back disability. In a December 2005 rating decision, the RO denied the claim as new and material evidence had not been received. Within one year, the Board notes that, as noted by his attorney, the Veteran filed another claim to reopen the previously denied claim. See September 13, 2006 Statement in Support of Claim. In a subsequent December 2006 rating decision, the RO confirmed and continued the previous denial on the basis that new and material evidence had not been received. In a September 2007 Statement in Support of Claim (VA Form 21-4138), the Veteran requested a complete copy of his VA claims file. The Board notes that the Veteran did not actually express a desire to appeal or challenge the December 2006 rating decision but simply moved forward to request a copy of his VA claims file which he later received in June 2008. See June 3, 2008 VA Privacy Act Letter; see also 38 C.F.R. § 3.155. The Veteran did not appeal the December 2006 rating decision and it became final. Moreover, it was not until October 2010 that the Veteran filed a Supplemental Claim for Compensation for a back disability in which he also indicated that he had lost his job. See VA Form 21-526b. In a January 2011 rating decision, the RO confirmed and continued the previous denial as again, new and material evidence had not been received to reopen the previously denied claim. The Veteran submitted copies of VA treatment records in support of his claim within one year from the January 2011 rating decision. In a May 2012 rating decision, the RO, again, confirmed and continued the previous denial as it was determined that such evidence was not new and material. Nothing further was received within one year from the May 2012 rating decision until his claim to reopen on September 6, 2013 (i.e., approximately one year and four months following the May 2012 rating decision). As the Veteran did not appeal the May 2012 rating decision, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. Following his September 2013 claim to reopen, the Veteran continuously prosecuted his appeal. In an April 2018 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine and separate ratings for bilateral radiculopathy of the lower extremities effective the date of receipt of the new claim to reopen, in this case September 6, 2013. In a subsequent May 2019 rating decision, the RO granted entitlement to a TDIU effective September 6, 2013 pursuant to Rice, as the issue of a TDIU was raised as part of the Veteran's lumbar spine disability and associated radiculopathy of the lower extremities. First, in addressing the arguments raised by the Veteran's attorney, the Veteran did not actually express a desire to appeal or challenge the December 2006 rating decision and the decision became final. Moreover, the Board notes that the Veteran did not actually express a desire to appeal or challenge the May 2012 rating decision but simply moved forward to submit a new claim for increase one year and four months later. In sum, the no new and material evidence or a statement was received expressing disagreement with the May 2012 rating decision. In fact, the foregoing is supported by the subsequent claim for compensation benefits submitted thereafter for the same disabilities in which the Veteran indicated that he "would like to file a compensation claim" for it. See September 6, 2013 VA Form 21-4138 claiming compensation benefits for a back disability that the Veteran expressed had caused him "problems working." Thus, as the September 6, 2013 claim for compensation benefits was filed one year and four months following the May 2012 rating decision, and because no new and material evidence or a statement expressing a desire to contest the result of the May 2012 rating decision was received within one year of the decision, the Board finds that there were no pending appeals at the time of the September 6, 2013 claim to reopen and the Veteran did not perfect his appeal. 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302. Hence, September 6, 2013 is the earliest possible date for the award of a TDIU as that is the date on which his claim to reopen the underlying disabilities was received. 38 C.F.R. § 3.400(b)(2). In sum, no new and material evidence was received by VA within one year of the issuance of the May 2012 rating decision and it was not appealed; thus, it is final. Accordingly, as the May 2012 rating decision became final, therefore, further discussion as to whether the Veteran continuously prosecuted any prior claims becomes moot for purposes of this appeal. Accordingly, as the evidence shows that there were no prior pending appeals or awards of service connection prior to September 6, 2013, the preponderance of the evidence is against the claim and entitlement to a TDIU prior to September 6, 2013, is not warranted. 2. Entitlement to DEA benefits prior to September 6, 2013. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (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. 38U.S.C. §§3500, 3501, 3510; 38C.F.R. §3.807. (CONTINUED ON NEXT PAGE) The Veteran contends that entitlement to an earlier effective date prior to September 6, 2013, for the award of DEA benefits under Ch. 35 is warranted as his TDIU, should have been warranted prior to that date. As the Board has determined that an earlier date is not warranted for a TDIU, an earlier date for DEA benefits is then not warranted as well. Therefore, DEA benefits prior to September 6, 2013, are not warranted. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.