Citation Nr: 21009244 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-41 032 DATE: February 22, 2021 ORDER An effective date of November 2, 2009, but no earlier, for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. An effective date of November 2, 2009, but no earlier, for eligibility for Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of November 2, 2009, the day following his last day of gainful employment. 2. As the Veteran is in receipt of a TDIU from November 2, 2009, an effective date of November 2, 2009 for the award of eligibility for DEA benefits is warranted. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 2, 2009, but no earlier, for the assignment of a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. 2. The criteria for an effective date of November 2, 2009, but no earlier, for the award of eligibility for DEA benefits are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to January 1977, and from March 1981 to September 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO assigned an earlier effective date of July 18, 2012 for the assignment of a schedular TDIU. In July 2016, VA received the Veteran’s Notice of Disagreement (NOD). In June 2017, the RO issued a (SOC). In July 2017, VA received the Veteran’s VA Form 9 appeal to the Board. In April 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In August 2019 the Board remanded the case for further development and adjudicative action. Specifically, the Board directed the RO to refer the case to the Director, Compensation Service for consideration of assignment of an extraschedular TDIU for the period prior to July 18, 2012. In December 2020, the Director, Compensation Service completed an advisory opinion regarding entitlement to an extraschedular TDIU for the period prior to July 18, 2012. The opinion has been associated with the claims file. In a December 2020 rating decision, the RO assigned a TDIU on extraschedular basis, effective from March 28, 2011. Effective Date 1. Entitlement to an effective date prior to March 28, 2011 for the assignment of a TDIU on an extraschedular basis. The Veteran is currently in receipt of a schedular TDIU from July 18, 2012 and a TDIU on an extraschedular basis from March 28, 2011. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. A claim filed within one year of separation from service is effective from the date of discharge. See id. For increased rating claims, including claims for TDIU, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340 (a), a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). As noted above, the Veteran first me the schedular criteria for a TDIU as of July 18, 2012. As of that date, the Veteran’s combined rating was 80 percent, and he had at least one disability rated at least 40 percent. However, from March 25, 2009 (the date on which the Veteran filed his increased rating claim) to July 18, 2012, the Veteran’s combined rating was 50 percent. Specifically, from March 25, 2009 to July 18, 2012, the Veteran’s service-connected disabilities included paresthesias left lower extremity secondary to multiple sclerosis, ratable as 20 percent disabling, paresthesias right lower extremity secondary to multiple sclerosis, ratable as 10 percent disabling, paresthesias left upper extremity secondary to multiple sclerosis, ratable as 10 percent disabling, paresthesias right upper extremity secondary to multiple sclerosis, ratable as 10 percent disabling, erectile dysfunction associated with multiple sclerosis, ratable as noncompensable, and optic atrophy left eye associated with multiple sclerosis, ratable as noncompensable. Despite failing to meet the threshold percentage standards set forth under 38 C.F.R. § 4.16(a), the Veteran may nevertheless warrant a TDIU if it is established by the evidence of record that his service-connected disability or disabilities has rendered him unable to secure and follow substantially gainful employment. If there is a possibility of substantiating such a claim, then the case is referred to the Director, Compensation Service for extra-schedular consideration in the first instance. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b). As noted above, in December 2020, the case was referred to the Director, who determined that a TDIU on an extraschedular basis was warranted from March 28, 2011. As referral to the Director has already occurred, the Board may adjudicate the issue of entitlement to an effective date prior to March 28, 2011 for assignment of a TDIU on an extraschedular basis on the merits. The Veteran completed three years of college and his employment history includes work as a maintenance worker. He last worked in November 2009. On March 25, 2009, VA received the Veteran’s claim for increased rating for disabilities stemming from his service-connected multiple sclerosis. During an RO hearing before the Decision Review Office (DRO) on March 28, 2011, the Veteran claimed that he had become unemployed due to disabilities stemming from service-connected multiple sclerosis; therefore, an inferred TDIU claim is raised as part and parcel of the Veteran’s claim for increased rating for multiple sclerosis. Given the above, as the Veteran contended that he was unemployable due to service-connected disabilities while the appeal for increased rating for disabilities stemming from his service-connected multiple sclerosis was pending, the Veteran’s inferred claim for a TDIU relates back to his March 25, 2009 claimed for increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper, 30 Vet. App. at 362. A communication dated April 2009 reflects that the Veteran was experiencing a period of elevated symptoms, including diminished muscle strength and sensation, weakness, and fatigue. Additionally, he noted that these symptoms had some effect on my job” and “it has my employer [concerned] because of being in maintenance and [involving] physical labor. My hours have been cut.” During a July 2009 VA examination for his MS, the Veteran reported that he was no longer able to work due to his MS. Regarding the functional impact of the MS, the examiner opined that the Veteran would have difficulty with prolonged standing, walking or performing physically demanding activities of daily life (ADLs) such as running, jogging, exercising, mowing the lawn, or gardening. Thereafter, in a September 2009 statement, the Veteran described inability “to give 100% [at] work.” Specifically, he noted that “after about half a day at work my legs get weaker [and] more fatigue feeling and ache.” The Veteran also described several falls, and difficulty with balance and coordination. Social Security Administration (SSA) records received in April 2011 show that the Veteran last worked on November 1, 2009. A VA medical record dated May 18, 2010 states that the Veteran lost his job “since his work productivity was declining in the midst of his health problems.” Concurrently, the Veteran reported “persistent stumbling and [left lower extremity] weakness” and falls occurring every 1-2 weeks. See neurology note dated May 18, 2010. Notably, the evidence shows that the Veteran suffered from flares of his multiple sclerosis lasting between a few weeks to a few months during this period. See Director, Compensation Service, December 2020 Advisory Opinion. During an August 2010 VA appointment, the Veteran again stated that he was currently unemployed “due to disability” and unable to work due to “weakness and gait instability.” Coordination and falls were noted to have increased, despite use of a cane. See prime return appointment note dated August 24, 2010. In April 2011, the Veteran filed a formal claim for a TDIU. The Veteran’s formal claim for TDIU reveals, prior to becoming unemployed in November 2009, the Veteran was working 40 hours per week and earning $3,400 per month. See April 2010 VA Form 21-8940. In a de novo review of the Veteran’s claim, in December 2011, the RO issued a SOC denying entitlement to a TDIU. A contemporaneous rating decision from November 2011 incorporated by reference the December 2011 SOC issued in the next month. Following notification of the decision in December 2011, the Veteran had one year from the date of notification to appeal. On July 18, 2012, within one year of notification, VA received the Veteran’s correspondence indicating disagreement with the SOC. In effect, this correspondence indicated disagreement with the November 2011 rating decision, which adopted the December 2011 SOC. Therefore, as the Veteran timely appealed, the TDIU claim remained pending. 38 C.F.R. § 20.502. In a March 2014 rating decision, the RO assigned a schedular TDIU effective from March 5, 2013. In August 2014, VA received the Veteran’s NOD with the March 2014 decision. In the NOD, the Veteran indicated disagreement with the effective date assigned for the TDIU. Accordingly, the claim remained on appeal. In an October 2015 rating decision following a special review of the Veteran’s claims file, the RO assigned an earlier effective date of July 18, 2012, the date that the Veteran’s response to the December 2011 SOC was received, for the assignment of a TDIU. However, the RO concluded that the July 18, 2012 correspondence was an untimely appeal of the SOC and instead construed the document as an informal claim for a TDIU. Notwithstanding, given that a document indicating disagreement with the November 2011 rating decision, which incorporated the December 2011 SOC by reference, was received on July 18, 2012, the correspondence was not an informal claim for a TDIU, as stated in the October 2015 rating decision, but instead was a timely appeal following notification of an unfavorable decision by the RO. 38 C.F.R. § 20.502. Following the October 2015 rating decision, in June 2016, VA received the Veteran’s NOD with the October 2015 decision. Following the June 2017 SOC, in July 2017, the Veteran appealed to the Board. In August 2019, the Board remanded the claim for extraschedular consideration by the Director, Compensation Service. The Director concluded that a TDIU on extraschedular basis was warranted from March 28, 2011. Regarding that date, she observed that March 28, 2011 is “the date the records first show the Veteran was unemployed and the date the records first indicated the service connection conditions would reasonably prevent the Veteran from maintaining employment.” Thereafter, in a December 2020 rating decision, the RO assigned a TDIU on an extraschedular basis from March 28, 2011. Based on the foregoing, an effective date of November 2, 2009, but no earlier, is warranted for the assignment of a TDIU on an extraschedular basis. Specifically, the evidence shows that the Veteran’s last day of employment was on November 1, 2009 and that, after that date, he was at least as likely as not unable to maintain gainful employment due to his service-connected disabilities. In support, significant probative value is afforded to VA medical records from May and August 2010 as well as the Veteran’s lay statements describing fatigue, incoordination, falls, muscle weakness, and sensory deficits due to disabilities stemming from the service-connected MS. Accordingly, an effective date of November 2, 2009, or the date following the Veteran’s last date of employment, for the assignment of a TDIU on an extraschedular basis is warranted. However, an effective date prior to November 2, 2009 for the assignment of an extraschedular TDIU is not warranted. Although the correspondences received in April and September 2009 and the July 2009 VA examination report reflect that the Veteran’s service-connected disabilities stemming from multiple sclerosis interfered with his employment, there is no evidence of actual unemployment or marginal employment, including employment dependent on a protected work environment, at that time. The evidence does not show actual unemployment until November 2009. Accordingly, the criteria for an effective date for the assignment of a TDIU prior to November 2, 2009 have not been met. DEA under 38 U.S.C. Chapter 35 2. Entitlement to an effective date prior to March 28, 2011 for eligibility for DEA benefits under 38 U.S.C. Chapter 35. Under 38 C.F.R. § 3.155(d)(2), “VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to 38 U.S.C. Chapter 35 Dependents’ Educational Assistance benefits...). The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed.” In this case, entitlement to an earlier effective date for the award of eligibility for DEA benefits under 38 U.S.C. Chapter 35, currently effective from March 28, 2011, arises from the assignment of an effective date of November 2, 2009 for the assignment of a TDIU on an extraschedular basis. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where a claim is reopened after a prior final disallowance based on the receipt of new and material evidence, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). DEA benefits are payable to the child, spouse, or surviving spouse of a veteran 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. § 3510; 38 C.F.R. § 3.807(a). In the above decision, an earlier effective date of November 2, 2009 has been assigned for the grant of the Veteran’s TDIU. Therefore, the Veteran has permanent and total disability status as of November 2, 2009. Eligibility for DEA benefits from November 2, 2009 is therefore established. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.