Citation Nr: 21005518 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-20 897 DATE: February 1, 2021 ORDER Entitlement to an effective date of December 31, 2009 for the award of a total disability rating based on individual unemployability (TDIU) on a schedular basis is granted. Entitlement to an effective date of December 31, 2009 for the award of Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. REMANDED Entitlement to an effective date earlier than December 31, 2009 for the award of a TDIU on an extraschedular basis is remanded. Entitlement to an effective date earlier than December 31, 2009 for the award of DEA under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities have caused him to be unemployable since at least December 31, 2009. 2. From December 31, 2009, the Veteran has a permanent and total disability rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 31, 2009 for the award of entitlement to TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.19, 4.25. 2. The criteria for entitlement to an effective date of December 31, 2009 for DEA pursuant to Chapter 35, Title 38, United States Code have been met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to April 1971. He seeks entitlement to earlier effective dates for the awards of TDIU and DEA, which are currently in effect as of February 1, 2010. The Veteran has asserted, through his attorney that October 1, 2007, is the proper effective date. See December 2020 Attorney Correspondence. By way of pertinent history, a July 2012 Board decision found that TDIU had been raised by the record and in connection with the Veteran’s increased rating claim for his service-connected prostate cancer residuals. In an April 2016 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU, effective October 27, 2011. The Veteran disagreed with the assigned effective date, and perfected this appeal. In a July 2019 decision, the Board granted an earlier effective date of February 1, 2010 for the award of TDIU, on an extraschedular basis, and an earlier effective date for the award of DEA benefits, effective the same date. In June 2020, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s Joint Motion for Partial Remand (JMPR) and vacated and remanded the July 2019 decision, insofar as it denied entitlement to a TDIU and DEA benefits prior to February 1, 2010. The JMPR noted that a prior Board remand dated in June 2015 had inaccurately directed the AOJ to readjudicate the claim for a TDIU at any time from October 27, 2011 forward, despite the Court’s finding that the issue of entitlement to a TDIU had been on appeal since October 1, 2007, the date on which a temporary total rating for the Veteran’s service-connected prostate cancer residuals had expired. The JMPR indicated that while the appeal of the ratings for prostate cancer residuals for the period prior to October 27, 2011 had been abandoned by way of a prior Joint Motion for Remand (JMR), the parties had agreed in that JMR that the issue of entitlement to a TDIU remained in appellate status for the entire appeal period, i.e., since October 1, 2007, based on the Board’s July 2012 remand decision. Therefore, the June 2020 JMPR found that the Board’s July 2019 decision should be vacated and remanded insofar as it failed to consider entitlement to a TDIU from October 1, 2007 to February 1, 2010. The Board will address this matter below. Entitlement to an effective date earlier than February 1, 2010 for the award of a TDIU. As noted above, the Veteran, through his attorney, has asserted that TDIU is warranted since October 2007. Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board recognizes that in its prior decision, the Board made a finding that the Veteran became eligible for a TDIU on a schedular basis on October 27, 2011. It then awarded a TDIU prior to that date, effective February 1, 2010 on an extraschedular basis. Upon further review of the file however, the Board observes that the Veteran’s prostate cancer residuals, diabetes, and neuropathy of the right lower extremity (secondary to the diabetes) arise out of a common etiology – exposure to Agent Orange – and for TDIU purposes, when combined, may be treated as one disability rated as 60 percent disabling, effective December 31, 2009. 38 C.F.R. §§ 4.16(a), 4.25. Accordingly, the eligibility requirements for a schedular TDIU, based on a single service-connected disability ratable at 60 percent or more, are met as of December 31, 2009. The Board accordingly finds that in this decision it can award a schedular TDIU effective December 31, 2009 and for all times thereafter. The Board, in its July 2019 decision, already found that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities from at least February 1, 2010, and the award was implemented in a July 2019 rating decision. Because the same symptomatology and disabilities were present as of December 31, 2009, and herein the Board has determined that the Veteran met the schedular criteria for a TDIU as of that earlier date, an effective date of December 31, 2009 is granted for the award of a schedular TDIU. The question of whether a TDIU may be awarded on an extraschedular basis prior to December 31, 2009 will be discussed in the Remand section below. 2. Entitlement to an effective date earlier than February 1, 2010 for the assignment of DEA benefits. For the purposes of educational assistance for dependents 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. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807 (a), 21.3021. VA has already determined that the Veteran’s disability is permanent in nature. See April 2016 rating decision. Given that the Board has awarded an earlier effective date of December 31, 2009 for the grant of a total disability rating in the form of a TDIU, the Veteran now has a permanent and total disability rating as of December 31, 2009. Entitlement to an effective date of December 31, 2009 for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35, is granted. REASONS FOR REMAND As the Board has awarded an effective date of December 31, 2009 for the award of a schedular TDIU and DEA benefits, the question that remains is whether an even earlier effective date can be awarded, as the Veteran requests. Prior to December 31, 2009, the Veteran’s percentage does not meet the requirements for a TDIU under 38 C.F.R. § 4.16(a). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). Here, there is evidence that the Veteran may have been precluded from obtaining and maintaining gainful employment for all times relevant to the appeal period prior to December 31, 2009. Indeed, in his March 2015 application for a TDIU, the Veteran reported that he discontinued full-time employment in March 2007, after which his frequent urination associated with post-operative residuals of prostate cancer treatment prevented him from engaging in full-time work. And in an August 2013 vocational assessment, the opinion provider concluded that the Veteran’s service-connected disabilities precluded employment as of 2007. However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b); see Wages v. McDonald, 27 Vet. App. 233 (2015) (noting that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”); Bowling v. Principi, 15 Vet. App. 1 (2001). Contrary to the assertion of the Veteran’s attorney in his December 2020 brief, the AOJ did not already refer the question of whether the Veteran may be entitled to a TDIU on an extraschedular basis to the Director of Compensation Services. Indeed, the June 2016 Administrative Decision issued by the Director of Compensation only addressed the issue of entitlement to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) for residuals of prostate cancer, and not the issue of entitlement to an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). Therefore, remand is necessary so the referral for consideration of an extraschedular TDIU can take place. The Board adds that the issue of entitlement to an effective date earlier than December 31, 2009, for the establishment of basic eligibility for DEA benefits must also be remanded as it is inextricably intertwined with the claim for an earlier effective date for the award of TDIU. The matters are REMANDED for the following action: Refer the Veteran’s TDIU claim to the Director of Compensation Services for consideration on an extraschedular basis for the period from October 1, 2007 to December 31, 2009. Then, readjudicate the issues. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.