Citation Nr: 21008130 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-17 936 DATE: February 11, 2021 ORDER Entitlement to an effective date of October 22, 2008, but no earlier, for the award of a total rating based on individual unemployability (TDIU) is granted. Entitlement to an effective date of October 22, 2008, but no earlier, for the award of Dependent's Educational Assistance (DEA) is granted. FINDINGS OF FACT 1. The Veteran’s service connected disabilities have rendered him unable to maintain gainful employment effective October 22, 2008. 2. The Veteran has met requirements for DEA effective October 22, 2008. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of October 22, 2008 for a TDIU on an extra-schedular basis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of October 22, 2008 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 July 1983 to July 1976, from June 1978 to June 1980, from October 1994 to December 1994, and from October 2001 to April 2003. Subsequently, the Veteran had Reserve service. This matter is before the Board of Veterans Appeals’ (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in April 2020, at which time it was remanded to the RO for further development. The RO most recently readjudicated the appeal in November 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2020 Board remand. Entitlement to a TDIU prior to January 11, 2011, to include on an extraschedular basis At the outset, the Board notes that a TDIU is in effect from September 11, 2011. The Veteran contends that a TDIU is warranted for the period prior to that date. As TDIU is a type of increased rating claim, the laws governing the assignment of effective dates for these types of claims apply. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C. § 5110 (g). A May 2013 rating decision granted entitlement to a schedular TDIU effective January 11, 2011. The Veteran alleges that he is entitled to an earlier effective date. With regard to when entitlement to TDIU may have arisen, by law, TDIU is based on unemployability due solely to service-connected disabilities. Relevant here, the law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). The Veteran did not receive a combined disability rating of 70 percent, or a single disability in excess of 60 percent or more until September 11, 2011. Prior to that date, the Veteran was service connected for a back condition rated 20 percent disabling effective October 22, 2008 and a left hip condition rated 10 percent disabling also effective October 22, 2008. From October 22, 2008 to September 11, 2011 the Veteran had a 30 percent combined disability rating. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time prior to September 11, 2011. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU prior to that date on a schedular basis must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected disabilities nonetheless result in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, the question becomes whether these disabilities, in and of themselves, precluded the Veteran from securing or following a substantially gainful occupation prior to September 11, 2011. In a November 2020 advisory opinion, the Director of Compensation Service, concluded the Veteran should not be granted entitlement to TDIU on an extra-schedular prior to September 11, 2011. The opinion noted that records show that the Veteran drove buses part time in 2011 and attended college classes. Although the opinion acknowledged the Veteran’s physical limitations, it found that the Veteran would be capable of sedentary employment. It is noted that the Director’s decision itself is not evidence, but, rather, a de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Moreover, the Court has recently held that because VA does not define “sedentary employment” in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board finds that the evidence of record is in equipoise as to whether the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation such that resolving doubt in favor of the Veteran a TDIU on an extraschedular basis is warranted. The Veteran reported that he had been a truck driver within the shipping and delivery industry from 1994 to 2008 when he stopped full time work due to his disability. The Veteran reported that a typical day consisted of driving a truck to transport freight shipments from one business to another. The role consisted primarily of prolonged sitting, one hour of walking, and one hour of standing per day. The Veteran also stated that he frequently lifted/carried delivery supplies/items about 20 to 30 feet several times per day. A November 2008 treatment record reveals that the Veteran had left hip problems, which were aggravated by walking, standing, and prolonged sitting. The Veteran reported having difficulty with a variety of activities of daily living including stair climbing, getting in and out of a chair, and putting on his shoes and socks. The Veteran limped and used a cane. As noted above, the Veteran was service connected for a back condition rated 20 percent disabling effective October 22, 2008 and a left hip condition rated 10 percent disabling also effective October 22, 2008. From October 22, 2008 to September 11, 2011 the Veteran had a 30 percent combined disability rating. A December 2009 Multiple Impairment Questionnaire showed that the Veteran had, in relevant part, diagnoses of severe degenerative arthritis in the left hip and chronic low back pain with mild to moderate arthritis and the Veteran was advised regarding potential hip replacement surgery. In a December 2009 Disability Report, the Veteran stated that due to his hip and back pain, he had difficulties lifting, bending, sitting, standing, and walking. While the record indicates that the Veteran did work on a part-time basis in 2010-2011, available income records indicate that this would be considered marginal. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016) (a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case). Considering the above, and the Veteran’s entire disability picture, to include his past employment as a truck driver requiring prolonged sitting, we find the Veteran was unable to work due to his service connected disabilities effective October 22, 2008. Consequently, the Veteran is entitled to extraschedular TDIU. The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), Dalton v. Nicholson, 21, Vet. App. 23, 32-34 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). Here, the Veteran’s application for TDIU was received on October 22, 2008. Entitlement for DEA prior to January 11, 2011 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. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. The Veteran contends that he is entitled to an earlier effective date prior to September 11, 2011 for the award of DEA benefits under Chapter 35 because his TDIU should have been assigned prior to that date. As discussed further above, the Veteran has been granted a TDIU on an extraschedular basis effective October 22, 2008. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, the effective date of such eligibility cannot precede the date TDIU was awarded. Accordingly, an effective date of October 22, 2008 for entitlement to DEA benefits is granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.