Citation Nr: 21027126 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-31 041 DATE: May 4, 2021 ORDER Prior to January 23, 2014, entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis with anterior cruciate ligament (ACL) sprain is denied. From January 23, 2014 to November 5, 2020, entitlement to an increased 30 percent rating for left knee osteoarthritis with ACL sprain is granted. From November 5, 2020, entitlement to a rating in excess of 40 percent for left knee osteoarthritis with ACL sprain is denied. Entitlement to an earlier effective date of August 22, 2012 for the award of a total disability rating based upon individual unemployability (TDIU) is granted. Entitlement to an earlier effective date of August 22, 2012 for the award of a basic eligibility to Chapter 35 Dependents' Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. Prior to January 23, 2014, the preponderance of the evidence demonstrates that the Veteran's left knee osteoarthritis with ACL sprain was manifested by limitation of flexion in excess of 45 degrees, even considering functional impairment. 2. From January 23, 2014 to November 5, 2020, when resolving reasonable doubt in the Veteran's favor, his left knee osteoarthritis with ACL sprain was manifested by limitation of flexion to 15 degrees when considering functional impairment. 3. From November 5, 2020, the Veteran is in receipt of a 40 percent rating for his left knee osteoarthritis with ACL sprain, which contemplates left knee functioning that is so diminished the Veteran would be equally served with amputation with prosthesis; there is no evidence of more severe symptomatology. 4. From August 22, 2012, the Veteran's service-connected left knee disability, to include osteoarthritis with ACL sprain and severe instability, rendered him unable to secure or follow a substantially gainful occupation. 5. From August 22, 2012, the Veteran is considered to be permanently and totally disabled. CONCLUSIONS OF LAW 1. Prior to January 23, 2014, the criteria for an initial rating in excess of 10 percent for left knee osteoarthritis with ACL sprain were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5260 (2020). 2. From January 23, 2014 to November 5, 2020, the criteria for an increased 30 percent rating for left knee osteoarthritis with ACL sprain were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71A, DC 5260 (2020). 3. From November 5, 2020, the criteria for a rating in excess of 40 percent for left knee osteoarthritis with ACL sprain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71A, DCs 5165, 5260 (2020). 4. From August 22, 2012, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400, 4.16(b) (2020). 5. From August 22, 2012, the criteria for basic eligibility to DEA benefits were met. 38 U.S.C. §§ 3501, 5107 (2012); 38 C.F.R. §§ 3.400, 3.807 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 1983 to July 1990. These matters previously came before the Board of Veterans' Appeals (Board) in March 2018, February 2019, and June 2020, whereupon they were remanded for further evidentiary development. The Board notes that, in February 2021, the Veteran submitted a VA Form 9 in which he requested a Board hearing regarding the issues on appeal. However, in subsequent correspondence received in March 2021, he withdrew his hearing request. 1. Entitlement to an increased initial rating for left knee osteoarthritis with ACL sprain The Veteran contends that his left knee osteoarthritis with ACL sprain is more severe than his current staged rating reflects. His left knee symptoms were initially rated under DC 5260. Effective on November 5, 2020, he was assigned an increased 40 percent rating under DC 5165. The Board notes that, in a February 2021 brief submitted after the 40 percent rating was effectuated, the Veteran's representative offered specific arguments in favor of an increased rating prior to November 5, 2020 but did not provide arguments in support of a rating in excess of 40 percent from that date forward. Under DC 5260, a noncompensable rating is warranted when knee flexion is limited to 60 degrees; a 10 percent rating is warranted when flexion is limited to 45 degrees; a 20 percent rating is warranted when flexion is limited to 30 degrees; and a 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71A. (Normal range of motion of the knee is zero to 140 degrees of extension to flexion. Id. at Plate II.) Under DC 5265, a 40 percent rating is assigned when left knee function is equivalent to amputation at a lower level, permitting prosthesis. A 60 percent rating is warranted for amputation not improvable by prosthesis controlled by natural knee action (under DC 5164); or for amputation with defective stump, thigh amputation recommended. Id. at DCs 5162-5165. The Board notes that, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The Veteran filed the instant claim for increased compensation in August 2012. Thereafter, he submitted private medical records documenting a history of moderate to severe left knee pain which worsened with activity. In January 2013, he was seen by a VA physician for an injection for knee pain; at that time, his range of motion was from 0 to 110 degrees, with no erythema, edema, or increased warmth observed in either knee. On VA examination in March 2013, the Veteran described worsening pain in his left knee with flare-ups which caused him to fall. Range of motion testing revealed flexion from zero to 140 degrees, with pain noted at 105 degrees of flexion (no objective evidence of pain on extension was noted). There was no additional loss following repetitive-motion testing. The Veteran had tenderness or pain to palpation for the joint line or soft tissue. No loss of muscle strength was noted. The examiner stated that there was no history of meniscal conditions. The Veteran reported pain with weight bearing and stated that he used a brace and cane constantly. In terms of functional impact, the examiner noted that the Veteran required mildly increased time to complete certain tasks such as climbing, stooping, kneeling, crouching, lifting, and carrying, as well as mildly decreased standing and ambulation secondary to pain. In April 2014, the Veteran submitted a report of an examination from a private physicianthe report itself was dated February 5, 2014, but the examination appears to have been completed on January 23, 2014indicating that pain was observed at 15 degrees of flexion of the left knee, and that ankylosis was noted in flexion between 10 and 20 degrees (this ankylosis finding is in dispute and is addressed in greater detail below). At the outset, the Board finds that prior to the private physician's evaluation, the criteria for an initial rating in excess of 10 percent for the Veteran's left knee osteoarthritis, based on limitation of flexion, were not met. In order to warrant a rating in excess of 10 percent under DC 5260, the evidence must show functional limitation of flexion to at least 30 degrees. See 38 C.F.R. § 4.71A, DC 5260. Here, prior to the January 2014 evaluation, the most probative evidence of record, namely the January 2013 VA treatment note and the March 2013 VA examination report, shows that the Veteran was able to flex his left knee to, at worst, 105 degrees before experiencing pain. There is nothing in the record that contradicts these findings. The Veteran has cited multiple evaluations from his private physician in support of a requested 30 percent rating; however, the earliest such evaluation, noted above, was from January 23, 2014. There is no probative evidence prior to that date that the Veteran's left knee range of motion warranted a rating in excess of 10 percent under DC 5260, even considering the effects of painful motion and additional limitation of function due to pain, weakness, and fatigue. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-207. As such, the Board finds that an initial rating in excess of 10 percent under DC 5260 is not warranted. The Board agrees with the Veteran's representative, however, that the January 23, 2014 private examination report demonstrating painful motion at 15 degrees of flexion is sufficient to support an increased 30 percent rating from that date forward. See 38 C.F.R. § 4.71A, DC 5260. This accords with the relief sought in the Veteran's representative's February 2021 brief, wherein he cited the private physician's evaluation (as well as subsequent evaluations from the same physician) as substantiating a 30 percent rating. The Board will resolve all reasonable doubt in the Veteran's favor in awarding him an increased rating to this extent. See Hart v. Mansfied, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). The Board acknowledges that the Veteran's representative requested an increased 30 percent rating dating back to the Veteran's August 2012 claim; as there is no credible evidence of limitation of flexion warranting such an increase prior to the January 23, 2014 private evaluation, this benefit cannot be granted. (The Board however is granting entitlement to a TDIU for the entire appeal period.) The Veteran was afforded a VA examination in January 2015. The report notes his descriptions of constant knee pain and flare-ups; he stated that his disability had "drastically changed my life." Range of motion testing revealed flexion from zero to 70 degrees, with pain at 55 degrees. The examiner noted that the Veteran was able to fully extend the knee but experienced pain beginning at 5 degrees of extension. There was no additional loss following repetitive-motion testing. Functional impairment was noted in the form of weakness, pain, and swelling. In addition, loss of muscle strength was noted; strength was 4/5 in both flexion and extension. The examiner noted that the Veteran had a history of meniscal tear on the left side; however, there was no evidence of frequent episodes of locking or effusion into the joint. In terms of functional impact, the Veteran required moderately increased time to complete certain tasks such as climbing, stooping, kneeling, and crouching, as well as decreased ability to stand and ambulate. The examiner noted that this "may preclude participation in occupations with moderate to high physical activities of employment." The examiner further noted that it was impossible to provide additional range of motion lost during flare-ups, because the Veteran's flare-ups were not always of the same intensity. As a result, during milder flare-ups the Veteran would not suffer additional range of motion loss; however, more severe flare-ups "may prevent any movement whatsoever." In July 2016, the Veteran underwent another VA examination for his left knee. The examiner noted that the Veteran's left knee flexion was limited to 95 degrees, with no additional loss. The Board does not find this examination to be particularly probative, as it failed to take into account the Veteran's reports of worsening pain and debilitating flare-ups. In December 2016, the Veteran submitted an evaluation from his private physician (dated in November 2016) indicating that the Veteran experienced weakness and pain in his left knee with resulting functional impairment. The physician noted that pain was observed at 15 degrees of flexion of the left knee and again indicated that ankylosis was noted in flexion between 10 and 20 degrees. A similar evaluation was provided by the same physician in December 2017 noting identical range of motion findings. The Veteran was afforded a VA examination in May 2018. The report reflects his complaints of flare-ups, which he described as manifested by limping, numbness, and sharp, stabbing pain. Somewhat confoundingly, the examiner noted that the Veteran had full range of motion of the left knee, with no pain whatsoever. In a February 2019 remand, the Board determined that the May 2018 VA examination was inadequate and directed the RO to schedule another examination. The Veteran was afforded another VA examination in June 2019. The report indicates that the Veteran had range of motion from zero to 70 degrees in his left knee; however, it was observed that his gait was abnormal and that overall lower extremity strength was impaired. In addition, there was objective evidence of localized tenderness or pain on palpation, pain with weight-bearing, and crepitus. No estimates were provided regarding additional degrees of range of motion loss following repeated use or during flare-ups. The examiner noted factors such as weakness and interference with standing, as well as decreased muscle strength. There was no evidence of ankylosis. In a June 2020 remand, the Board found the June 2019 VA examination to be inadequate, as the examiner failed to take into account the Veteran's functional limitations due to flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that when flare-ups are an indicated part of a claimant's service-connected disability, VA examiners are obligated to elicit information concerning the "severity, frequency, duration, or functional loss manifestations" of flare-ups). The Board also sought further clarification regarding whether the Veteran's left knee was ankylosed, noting the private physician's statements to that effect. In November 2020, the Veteran underwent yet another VA examination. The report shows that the Veteran again reported flare-ups in addition to constant pain and functional limitation. He noted that some days he could hardly walk, the pain was so debilitating. Range of motion testing revealed flexion limited to 25 degrees and extension to 5 degrees. Repetitive-use testing resulted in an additional 10 degrees of lost flexion (resulting in flexion limited to 15 degrees). Factors such as fatigue and weakness also contributed to loss of function, and flare-ups had an equivalent effect as repetitive-use testing in terms of functional impairment. In a subsequent opinion, the examiner explained that flare-ups would result in, at most, an additional 15 degrees of loss of range of motion. With respect to the question of ankylosis, the examiner reviewed the record, including the private physician's findings noted above, and concluded that it could not be said that the Veteran's knee was ankylosed at any point during the appeal period, as a finding of ankylosis would require at least range of motion loss to 5 degrees or less, and such had not been shown. (The examiner pointed out that none of the private physician's evaluations reflected that actual range of motion testing had been performed.) Finally, the examiner opined that the Veteran's overall functional impairment was such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner explained that the Veteran's left knee osteoarthritis caused weakness, falls, and marked pain and loss of motion with ambulation, and that a properly-fitted prosthesis would equally well serve his overall mobility. The examiner noted objective evidence of pain on passive range of motion but no evidence of pain on non-weight-bearing. In terms of functional impact, the Veteran was limited in walking and standing and was completely unable to climb. As noted above, the Board has resolved all reasonable doubt in the Veteran's favor in finding that his left knee impairment more nearly approximated limitation of flexion to 15 degrees from February 5, 2014 to November 5, 2020. The Board reiterates that although some of the VA examination reports listed above indicate less significant impairment, these reports largely do not adequately contemplate the impact of functional impairment factors such as flare-ups (as reflected by the numerous Board remands in this case). Moreover, the Veteran has submitted evaluations from his private physician, starting in 2014, which show that he experiences pain beginning at 15 degrees of flexion of the left knee. The Board is not entirely convinced by the veracity of these evaluations, given their similarity; however, given the inadequacy of the VA reports of record, they cannot be completely discounted. In order to achieve a rating in excess of 30 percent under the DCs applicable to knee disability, it must be shown that the Veteran's left knee has been ankylosed. See 38 C.F.R. § 4.71A, DC 5256. Although the private evaluations of record suggest this is the case, the Board cannot agree. Notably, the private evaluations themselves are inconsistent on the question of ankylosis; they note first that the Veteran was able to flex to at least 15 degrees before experiencing pain. Moreover, the most recent VA examination report included an opinion in which a medical professional reviewed the pertinent information and concluded that the Veteran's left knee had never been ankylosed, as it had never been shown to have been limited to no more than approximately 5 degrees of motion. The Board finds the November 2020 VA examiner's opinion to be the most probative evidence in this regard. The Board has considered whether separate or increased ratings are available for the Veteran's left knee symptomatology under other DCs pertinent to knee disability. In this regard, the VA General Counsel has noted that "separate ratings may be assigned under [DC] 5260 and [DC] 5261, where a veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). DC 5261 provides that a compensable percent rating is warranted when extension is limited to 10 degrees or worse. 38 C.F.R. § 4.71A, DC 5261. However, there is no evidence that the Veteran has had limitation of left knee extension to such a degree. As noted above, the most recent VA examination report showed that the Veteran had extension limited to 5 degrees. This is the most severe such limitation in the record. Even considering functional impairment factors, there is no probative evidence to suggest that the Veteran's left knee extension has been limited to 10 degrees or more. As noted above, the provisions of DC 5257 need not be considered, as the Veteran has already been awarded the maximum 30 percent rating for severe lateral instability of the left knee. See VAOPGCPREC 23-97 (July 1, 1997) (providing that a claimant may be assigned separate ratings for arthritis with limitation of motion under DC 5260 or 5261 and for instability/subluxation under DC 5257). In addition, DC 5258 assigns a 20 percent rating for dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; and DC 5259 assigns a 10 percent rating for removal of the semilunar cartilage which is "symptomatic." See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that assigning an evaluation under DCs 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation for meniscal disability of the same knee under DC 5258 or 5259, and vice versa; entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC). On review, however, separate, compensable ratings are not warranted under either of these DCs. There is no evidence that the Veteran's left knee disability has resulted in symptoms contemplated under these DCs that have not already be compensated under his existing evaluations. See 38 C.F.R. § 4.14. The Board has considered the Veteran's lay statements regarding his left knee symptomatology. He is certainly competent to report symptoms such as pain, weakness, swelling, and flare-ups, and indeed the Board has considered these factors in awarding him an increased 30 percent rating from January 23, 2014 to November 5, 2020. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran's current, staged ratings contemplate painful motion for the entire appeal period, and none of his statements (other than his representative's arguments for a 30 percent rating, which the Board agrees with) include specific allegations that the criteria for higher ratings have been met, under any of the DCs discussed above. With respect to Sharp, 29 Vet. App. 26, the case which held that when flare-ups are an indicated part of a claimant's service-connected disability, the Board reiterates that the November 2020 VA examination included a detailed analysis of the functional impact of the Veteran's flare-ups, including their severity, frequency, and duration and estimates regarding range of motion lost during flare-ups. The Board has incorporated this analysis into its decisions in this matter. As such, the concerns raised in Sharp have been adequately addressed. With respect to Correia v. McDonald, 28 Vet. App. 158 (2016), the Board notes that the most recent VA examination reports include information regarding the Veteran's range of motion in non-weight-bearing and passive situations, thereby addressing the concerns raised in that case. As a final matter, the Board finds that a rating in excess of 40 percent from November 5, 2020 is not warranted. In short, there is no evidence of record suggesting that the Veteran's left knee function is equivalent to amputation not improvable by prosthesis controlled by natural knee action. See 38 C.F.R. § 4.71A, DC 5164. The November 2020 VA examination report includes the examiner's opinion that the Veteran would be equally well-served by a well-fitting prosthesis; there is no evidence of record which calls that conclusion into question. Moreover, the Veteran's representative did not specifically argue in his most recent brief (filed after the 40 percent rating was effectuated) that the criteria for a rating in excess of 40 percent have been met. In sum, the most probative evidence of record reflects that the Veteran's left knee osteoarthritis with ACL sprain more nearly approximates limitation of flexion to 15 degrees, first documented on January 23, 2014. Prior to that date, there is no probative evidence that the Veteran's symptoms warrant a rating in excess of 10 percent. Neither the Veteran nor his representative have provided specific evidence to indicate that a rating in excess of 40 percent is warranted from November 5, 2020 to the present, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). 2. Entitlement to an effective date earlier than December 2, 2015 for the grant of a TDIU The Veteran contends that he has been unable to work due to his service-connected left knee disabilities since filing the instant claim in August 2012. In January 2017, he submitted a VA Form 21-8940 indicating that he had graduated from high school and had last worked full-time in 2009 as a truck dispatcher and driver. On review, for the reasons discussed below, the Board agrees that a TDIU is warranted for the entire period under review. As of August 22, 2012, the Veteran was in receipt of a 10 percent rating for left knee osteoarthritis with ACL sprain; a 30 percent rating for left knee anterior instability; and a 10 percent rating for tinnitus. As discussed above, the Board has determined that, effective January 23, 2014, the Veteran is entitled to an increased 30 percent rating for his left knee osteoarthritis. Nonetheless, he does not meet the schedular criteria for a TDIU prior to December 2, 2015. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). Notwithstanding, it is VA policy that a TDIU will be awarded whenever a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). When, as here, the Veteran does not meet the requirements of 4.16(a), the Board may not award a TDIU in the first instance, but rather may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). In this case, the Board referred the matter of entitlement to a TDIU on an extraschedular basis to the Director for consideration as part of its June 2020 remand. In January 2021, the Director issued a memorandum declining to recommend an award of TDIU prior to December 2, 2015. This determination is not binding on the Board. See Anderson v. Shinseki, 22 Vet. App. 423, 427-29 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board). The relevant question now is whether the Veteran's service-connected left knee symptomatology rendered him unable to secure and follow a substantially gainful occupation prior to December 2, 2015. Having carefully reviewed the record, the Board finds that the evidence establishes entitlement to a TDIU under 38 C.F.R. § 4.16(b) based on the functional impact of the Veteran's left knee disabilities. The pertinent evidence is discussed below. In conjunction with his August 2012 claim, the Veteran submitted evidence of longstanding treatment for chronic left knee pain and instability; one treatment note from 2009 reflects that the Veteran's pain worsened with activity and from staying in any one position for too long, and that he was "unable to relieve [his] pain." He also submitted a statement from a friend explaining that the Veteran was always in pain, that he struggled to climb even three steps at a time, and that he complained of getting "no relief" from his pain. The friend also reported that the Veteran limped and had to wear a brace. In March 2013, the Veteran underwent a VA examination which revealed range of motion of the left knee from zero to 105 degrees without pain; however, the report noted the Veteran required constant use of a brace and a cane, and he reported flare-ups causing him to fall often. Despite these reports, instability tests were noted to be normal. (In its March 2018 decision granting an initial 30 percent rating for severe instability as of August 22, 2012, the Board essentially disregarded the March 2013 VA's examiner's findings, noting the Veteran's history of flare-ups and falling and subsequent medical evaluations documenting severe instability.) In February 2014, the Veteran submitted an evaluation from a private physician noting severe instability in the left knee. The report reiterated that the Veteran needed a knee brace and cane, that he could not stand or sit for more than 20 minutes at a time, and that his knee would regularly "give out." The evaluation noted that the Veteran was unable to work due in large part to his knee symptoms. In January 2015, the Veteran underwent a VA examination during which he reported that his left knee symptoms, to include constant pain, had "drastically changed my life." On examination, the Veteran displayed limited range of motion, flare-ups, instability, and muscle weakness. Notably, the examiner went into detail regarding the functional impact of the Veteran's flare-ups, stating that an extremely severe flare-up "may prevent any movement whatsoever," effectively rendering the Veteran immobile. Based on the above evidence, the Board finds that the Veteran's left knee symptomatology was severely debilitating, and can reasonably be said to have prevented him from sustaining gainful employment, particularly in light of his educational and work history as a truck dispatcher and driver, from the date he filed the instant claim, in August 2012. As noted above, the Veteran has provided credible lay and medical evidence demonstrating that his left knee symptoms cause him constant pain as well as unpredictable flare-ups causing him to fall. The Board notes that the Veteran's work history in trucking makes his knee problems uniquely damaging, as it appears he was unable to sit or drive for extended periods. The Board further notes that the Social Security Administration (SSA) determined the Veteran was disabled in part due to his knee problems. Furthermore, the January 2015 VA examination report provided a detailed description of the severity of the Veteran's flare-ups, noting that during severe flare-ups the Veteran would functionally be unable to move. It is difficult to imagine the circumstances under which someone in the trucking industry could sustain full-time employment under these circumstances, and indeed the Veteran has repeatedly asserted that he was unable to hold down full-time employment in light of his medical difficulties. The Board finds this assertion to be entirely reasonable and consistent with the evidence of record. Accordingly, entitlement to a TDIU is warranted, pursuant to 38 C.F.R. § 4.16(b), as of August 22, 2012, the date VA received the claim on appeal. 3. Entitlement to an effective date earlier than December 2, 2015 for the grant of basic eligibility for DEA benefits Basic eligibility for DEA benefits arises if a veteran is discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. "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(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In this case, the Veteran was previously awarded DEA benefits, effective December 2, 2015, based on the concurrent award of a 100 percent rating for persistent depressive disorder. Because the Board has found that the criteria for a TDIU were met as of August 22, 2012, entitlement to an earlier effective date for DEA benefits is likewise warranted. As discussed above, the evidence reflects that the Veteran's service-connected disabilities rendered him totally and permanently disabled for the duration of the appeal period. As such, basic eligibility for DEA benefits is granted, effective August 22, 2012. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.