Citation Nr: A21020660 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 211005-189268 DATE: December 30, 2021 ORDER Entitlement to an effective date prior to April 6, 2020, for the grant of TDIU is denied. Entitlement to an effective date prior to April 6, 2020, for the grant of Dependents' Educational Assistance under 38 USC chapter 35 (Chapter 35 benefits) is denied. FINDING OF FACT 1. The Veteran's claim for TDIU and for an increased PTSD rating became final after the Veteran did not appeal a December 2019 Statement of the Case. 2. The Veteran filed his Form 20-0995 Supplemental Claim for TDIU on April 6, 2020; prior to this date, entitlement to TDIU is not factually ascertainable. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to April 6, 2020 for the grant of TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500. 2. The criteria for entitlement to an effective date prior to April 6, 2020 for the grant of Dependents' Educational Assistance under 38 USC chapter 35 (DEA benefits) have not been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807 (a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to April 1969. In July 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2021 decision. In August 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior June 2021 decision. In his October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2021 decision AOJ decision on appeal. 38 C.F.R. § 20.301. 1. TDIU Effective Date The Veteran seeks an effective date prior to April 6, 2020 for TDIU, asserting that an effective date of May 31, 2015 should be warranted, as this was the first date his service-connected disabilities rendered him both unemployable, as well as permanently and totally disabled. The Veteran seeks to apply the "continuous pursuit" provisions of the AMA to his legacy claim. After reviewing the evidence of record, the Board determines that an effective date prior to April 6, 2020 is not warranted. A claim for a TDIU is a type of increased rating claim, and the effective date rules for increased rating claims are therefore for application. Dalton v. Nicholson, 21 Vet. App. 23, 3234 (2007). Specifically, the effective date for an increased rating for disability compensation will be the latest of 1) the date entitlement arose, 2) 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 3) the date of receipt of the claim. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o). This general rule applies equally under the legacy and AMA systems of review. See 38 C.F.R. § 3.2500(h)(1). Moreover, under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500(c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). For decisions rendered after a Higher-Level Review by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. Id. However, the term "continuous pursuit" only applies to AMA decisions. Specifically, when a claim filed under AMA is granted in an initial decision, the effective date of an AMA initial decision will be the later of the date of the supplemental claim, or the date of entitlement. Thus, even if a supplemental claim is received within one year of a legacy decision, the date of receipt of the supplemental claim will be considered the date of claim for effective date purposes. 38 C.F.R. §§ 3.2500(h), 3.2500 (f). In the event there were an AMA opt-in from an SOC or SSOC, the resulting AMA decisions (either by the AOJ or Board) would be issued in the AMA; therefore, only they, not the claims before the AMA opt-in, would be subject to continuous pursuit. See id. In this case, the procedural history is somewhat complicated by the fact that the AMA was adopted during the period in question. Specifically, the Veteran filed a claim for service connection for PTSD on May 17, 2016 and, on September 14, 2016, he received a rating decision granted for PTSD. On January 2017, he submitted a timely claim for an increased rating for his psychiatric symptoms, as well as for TDIU. He received a new rating decision on February 27, 2018, denying both claims. He submitted a notice of disagreement to this decision on March 15, 2018. The Veteran received an SOC to this disagreement on December 18, 2019, after the AMA became effective. At that time, he had 60 days to submit a timely substantive appeal (via a VA Form-9), or VA Form 10182, to appeal this decision to the Board. Instead of submitting a substantive appeal, the Veteran submitted a request for Higher Level Review on February 20, 2020. Unfortunately, while there are some situations where a claimant may opt-in to the AMA system, requesting Higher Level Review of an SOC is not one them. See 38 C.F.R. §§ 3.2400(c)(2), 2.2500, 3.2501. In order to correctly opt-into AMA from a SOC, a claimant has 60 days to submit either a supplemental claim, or an appeal to the Board via a Form 10182. Neither happened here. The RO did send the Veteran a letter in March 2020, informing him that the Higher Level Review request could not be accepted. And the Veteran did submit a supplemental claim on April 6, 2020. However, opt-ins to AMA following an SOC are still subject to the 60-day time limit. Therefore, this supplemental claim was not timely filed. Therefore, this appeal remained in the legacy system, was never appealed, and it became final after the 60 days expired. Subsequently, the RO construed the April 6, 2020 claim as a new claim for TDIU. When the RO granted TDIU in a June 2021 rating decision, an effective date of April 6, 2020 was assigned. While the finality of the Veteran's legacy TDIU claim precludes an effective date based on the legacy TDIU claim, a TDIU claim is still, in essence, a claim for a rating. Thus, the date of claim for TDIU could be prior to April 6, 2020, if the Veteran's unemployability were factually ascertainable one year prior to the date of his claim, which is April 6, 2020. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o), above. Unfortunately, the evidence of record does not indicate that a TDIU rating is factually ascertainable prior to April 6, 2020. Specifically, the evidence does not show that in the year prior to April 6, 2020, the Veteran was entitled to a TDIU rating. TDIU is considered to exist when there is any impairment which is enough to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). During the year prior to his claim, the Veteran was service connected for arteriosclerotic heart disease, at 30 percent, diabetes at 20 percent, and diabetic peripheral neuropathy in the left and right arms and left and right legs, all four of which were rated at 10 percent. Because the Veteran's diabetes and peripheral neuropathy share a common etiology, they are considered the same disability for purposes of meeting the schedular threshold for a TDIU rating. Accordingly, the Veteran has one rating of at least 40 percent, and an overall rating of at least 70 percent. He meets the schedular TDIU requirements in the one year prior to April 6, 2020. However, it does not appear that the Veteran was unemployable during this period on account of service-connected disabilities. Rather than his heart disease, diabetes, and diabetic neuropathy, the Veteran's TDIU award is based on his psychiatric disability, which shares the same effective date as his TDIU rating. Indeed, the June 2021 Rating Decision granting TDIU, cites two February 2021 contract VA psychiatric examinations, as well as an SSA record finding unemployability based on the Veteran's PTSD. By contrast, the Veteran's December 2021 VA examination reports do not demonstrate unemployability based on the Veteran's heart disease, diabetes, or related complications. While the Veteran had suffered a heart attack in 2015, he did not have CHF, arrhythmia, heart valve condition, or any other symptoms that could affect his employability. The Veteran's most recent EKG and stress tests were normal. Likewise, the Veterans' diabetes examination shows that while the Veteran required medication and a restricted diet, he had no loss of strength or weight due to diabetes. The only complications noted were ED and peripheral neuropathy, neither of which could render the Veteran unemployable. Accordingly, April 6, 2020 is the appropriate date of claim for purposes of calculating the Veteran's TDIU effective date. The Board is sympathetic to the Veteran's assertion that his Higher-Level Review claim was filed a mere ten days after the prior decision became final, due to circumstances beyond his control. Unfortunately, the Higher-Level Review form was not the proper form for opting into the AMA. Because a Form 9 or 10182 was not filed within the 60 day period, the Veteran's legacy claim became final. There was no open claim by the time the Veteran filed his Supplemental Claim in the AMA. The correct effective date of the grant of TDIU, and thus the Veteran's TDIU rating, is therefore April 6, 2020, the date of the AMA Supplemental Claim was received. 2. Chapter 35 Effective Date The Board finds that entitlement to basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to April 6, 2020, is not warranted. Survivors' and Dependents' Educational Assistance, under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of DEA exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. The Veteran was awarded eligibility to Chapter 15 benefits, effective April 6, 2020, based upon the finding that his service-connected disabilities combined to result in total social and occupational impairment as of that date. Since the effective date for Chapter 35 benefits was directly predicated on finding that the Veteran had a permanent and total disability rating due to service-connected disabilities, the Board finds that April 6, 2020 is the earliest date at which the Veteran could establish eligibility for Chapter 35 benefits. None of the other criteria mentioned above for DEA under 38 C.F.R. § 3.807 have been met at any time. Accordingly, entitlement to an effective date prior to April 6, 2020 for Chapter 35 benefits is denied. Accordingly, an earlier effective date for that benefit is not warranted. Moreover, because the Veteran is not considered "permanently and totally disabled" due to service-connected disabilities prior to April 6, 2020, an earlier effective date for Chapter 35 benefits is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia