Citation Nr: 21028195 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 11-34 022 DATE: May 10, 2021 REMANDED The claim for an effective date of April 16, 2008, for a total disability rating due to individual unemployability (TDIU) is remanded. The claim for an effective date of April 16, 2008 for the award of Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to March 1964. He died in July 2014. The appellant is his surviving spouse and has been substituted as the claimant with respect to the claims herein. In February 2020, the Board granted an effective date of April 16, 2008 for TDIU and DEA benefits. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By a December 2020 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's February 2020 decision regarding the effective dates for TDIU and DEA benefits and remanded the matters for further action consistent with the JMR. In the JMR, the parties pointed out that they had previously agreed that the Board had failed to consider whether additional evidence, received by VA in June 2004, constituted new and material evidence as contemplated by38C.F.R.§3.156(b) in conjunction with a November 2003 rating decision, and noted that "the Board should consider the significance of the additional evidence received by VA in June 2004 and provide a determination pursuant to 38C.F.R.§3.156(b)(2018) and Bond v Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Beraud v.McDonald,766 F.3d 1402 (Fed. Cir. 2014)." Here, in June 2004 and within the one year period following the promulgation of the November 2003 decision, VA received, in part, a statement from the Veteran to the effect that his claustrophobia had increased in severity and VA treatment reports reflecting that medication prescribed to treat his claustrophobia had increased from 20 to 40 milligrams a day. The Board finds this evidence new as it was not of record at the time of the RO's November 2003 rating action. It is also material because it reflects that the Veteran's claustrophobia had possibly increased in severity and, thus, had a possibility of substantiating the claim of an effective date prior to April 16, 2008 for the award of a TDIU rating. Id. As new and material evidence was received within the one year appellate period following the RO's November 2003 rating action, that decision did not become final and the Veteran's claim for a TDIU remained pending since June 16, 2003. At the time of the RO's June 2004 rating action, the Veteran had been assigned an initial 50 percent rating for claustrophobia, his only-service-connected disability, and, thus, that rating did not meet the 38 C.F.R. § 4.16 (a) schedular requirements for TDIU. As to whether there was evidence that the Veteran was unemployable since he had filed his claim for service connection for claustrophobia in June 2003, on a June 2007 VA Form 21-8940, the Veteran stated that he was self-employed in marketing/sales. He reported that he was employed from 2002 to 2007, and that he had last worked full-time in 2004. He also stated that he had lost income in the last 12 months. In December 2010, the Veteran submitted his tax returns for 2007 through 2009. The Veteran's W-2 wage statements showed he had earned $5,628 in 2008 and $7,347 in 2009. These statements are consistent with the Veteran's contention that he was not able to perform his work tasks and that his self-owned business involved marginal employment that was not substantially gainful. The Board finds there was evidence that the Veteran was unemployable at the time he filed his initial claim in June 2003 and, thus, referral of the matter to the Director of Compensation for consideration of an extraschedular TDIU rating for the period prior to April 16, 2008 is warranted. The issue of an earlier effective date for DEA benefits is intertwined with the TDIU issue and adjudication of the DEA issue is deferred at this time. These matters are REMANDED for the following action: Refer the claim of entitlement to a TDIU for the period prior to April 16, 2008 to the Director of Compensation and Pension for extraschedular consideration. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.