Citation Nr: 21015720 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 20-20 258 DATE: March 18, 2021 ORDER Discontinuance of a total disability rating based on individual unemployability (TDIU) from January 1, 2019 was not proper, and restoration of entitlement to TDIU, is granted. As the issue of a TDIU has been restored, restoration of the Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38 U.S.C. effective January 1, 2019, is granted. FINDINGS OF FACT 1. Actual employability is not established by clear and convincing evidence from January 1, 2019. 2. As the Veteran's permanent and total evaluation has been restored effective January 1, 2019, DEA benefits under Chapter 35 are restored accordingly. CONCLUSIONS OF LAW 1. The severance of a TDIU was improper, and restoration of a TDIU effective January 1, 2019 is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5112 (2012); 38 C.F.R. § 3.159, 3.343(c) (2020). 2. The criteria for restoration of the DEA benefits under Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 3510, 5113 (2012); 38 C.F.R. §§ 3.807 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from July 1985 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live videoconference. A transcript of the proceeding has been associated with the record. Rating Reduction VA regulation provides that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 C.F.R. § 3.105(e). In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application "but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence." If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. See 38 C.F.R. § 3.43(c)(1)(2). 1. Entitlement to a total rating based on individual unemployability (TDIU) The Veteran contends that TDIU should not have been discontinued effective January 1, 2019 because he was not gainfully employed. A review of the record shows that the RO sent the Veteran a notification letter in September 2018 regarding a proposal to discontinue entitlement to individual unemployability after receiving information that the Veteran had been gainfully employed. Furthermore, the RO noted that a correspondence from the Veteran confirmed that he was gainful employment with the Federal Emergency Management Agency (FEMA). A VA Form 21-4140, Employment Questionnaire or any other correspondence showing that he was unemployable was not received and his compensation was reduced to a 90 percent schedular rating effective January 2019. The RO also notified the Veteran that Social Security Administration (SSA) records showed that he was earning wages above the poverty threshold. See September 2018 Notification Letter. The Board notes that when reducing a rating of 100 percent service-connected disability based on individual unemployability, actual employability is to be established by clear and convincing evidence. 38 C.F.R. § 3.343(c)(1). Here, the record does not contain clear and convincing evidence indicating that the Veteran is able to obtain or is engaged in substantially gainful employment. The Veteran testified and has reported that his employment with Federal Emergency Management Agency (FEMA) was on a temporary on-call basis, and that he worked only during a hurricane and flooding for a period that was less than 12 consecutive months and that he called to notify the RO. See June 2017 VA 21-4140-1 Employment Questionnaire; July 2017 Report of Contact; April 2018 Report of General Information; February 2021 Hearing Transcript. The Board has considered the Veteran's statements as to his uninterrupted unemployability and finds them credible. See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The record confirms that the Veteran only worked temporary assignments with FEMA, less than 12 consecutive months during times of an emergency. Furthermore, a Decision Review Officer (DRO) informal conference afforded to the Veteran was inadequate as the Veteran was contacted by the RO in April 2020 to inquire if an informal conference with a DRO would suffice for his request to have a hearing with a DRO. The RO noted that the Veteran “agreed,” and held the informal conference the same day, instead of a formal hearing, without notifying the Veteran’s representative. The Veteran testified in February 2021 that he believed this was a routine phone call from the RO and that he wanted a DRO hearing. For the reasons set forth above, the Board finds that there is not clear and convincing evidence that the Veteran is employable or has engaged in substantial gainful employment at any time since TDIU was granted. As such, the Board finds that the discontinuance of his TDIU, primarily based on a temporary increase in earned wages above the poverty level was improper after considering the totality of the circumstances. Therefore, restoration of the TDIU is warranted effective January 1, 2019. 2. Whether the discontinuance of DEA benefits under Chapter 35 was proper. 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. As noted above, the Board has determined that the Veteran's award of a permanent and total evaluation was improperly discontinued. Accordingly, the Veteran's basic eligibility for DEA benefits under Chapter 35, which was initially established by a November 2001 rating decision based on such permanent and total evaluation, was also improperly discontinued. As the Board has restored the Veteran's entitlement to a TDIU effective January 1, 2019, entitlement to the award of basic eligibility to Chapter 35 DEA benefits is also warranted, effective January 1, 2019. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.