Citation Nr: 21030164 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-18 770A DATE: May 18, 2021 ORDER An earlier effective date of November 24, 2009 for the grant of a total rating based on individual unemployability (TDIU) is granted. An earlier effective date of November 24, 2009 for the award of eligibility to Dependents' Educational Assistance (DEA) is granted. FINDINGS OF FACT 1. The Veteran's claim was received on May 26, 2009 and his service-connected disabilities have caused him to be unemployable since November 24, 2009. 2. From November 24, 2009, the Veteran has had a permanent and total disability rating. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of November 24, 2009 for the award of entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 2. The criteria for an earlier effective date of November 24, 2009 for DEA eligibility pursuant to Chapter 35, Title 38, United States Code, have been met. 38 U.S.C. §§ 3501, 3510,5110; 38 C.F.R. §§ 3.400, 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to June 1974. The Veteran seeks entitlement to earlier effective dates for the awards of TDIU and DEA, which are currently in effect as of March 12, 2015. The Veteran has asserted, through his attorney that November 24, 2009, is the proper effective date. See July 2019 and January 2021 Attorney Correspondence. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to a TDIU and DEA, effective March 12, 2015. The Veteran disagreed with the assigned effective dates, and perfected this appeal. 1. Entitlement to an effective date prior to March 12, 2015 for TDIU. As noted above, the Veteran, through his attorney, has asserted that the Veteran is entitled to a TDIU effective from November 24, 2009. The Board agrees. As explained below the Board finds that an earlier effective date of November 24, 2009 is warranted. Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board recognizes that in its July 2020 decision, the Board stated that prior to March 12, 2015, the Veteran did not meet the schedular threshold for consideration of a TDIU under 38 C.F.R. § 4.16(a). Upon further review of the file however, the Board finds that the Veteran has met the schedular criteria for TDIU since July 14, 2003. This is because the Veteran's headache and lumbar spine disabilities resulted from the same inservice auto accident. Consequently, when the 50 percent rating for headaches and the 20 percent rating for lumbar spine disability are combined they may be treated as one disability rated as 60 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. Accordingly, the eligibility requirements for a schedular TDIU, based on a single service-connected disability ratable at 60 percent or more, have been met since July 14, 2003. The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For effective date purposes, an award of a TDIU is considered an increased evaluation. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). In this case the Veteran's claim for TDIU was received on May 26, 2009. In November 2009 the Veteran submitted a VA Form 21-8940 in which he reported that he last worked full time in December 2003 and that he became too disabled to work in May 2009. The Veteran noted that he had a high school education, that he had training in culinary arts and that he had worked as a cook. On VA examination in October 2009 the Veteran reported that he had eight or nine headaches per week. He stated that during his headaches he was limited to about 20 percent of his usual activity. He reported constant sharp pain in his low back and that that he had severe flare-ups. The examiner noted that due to the Veteran's headaches he would be restricted to activities that he could perform at his own pace. He further noted that the Veteran's mild degenerative disc disease and degenerative joint disease would not prevent sedentary activities or those that required light to moderate activity. In April 2010 the Veteran reported that he had migraine type headaches almost daily. The examiner noted that the he was limited to serving in a low stress environment that allowed for frequent breaks. He further stated that the Veteran's back condition would likely limit him to non-labor type employment. The examiner opined that the Veteran's service-connected the Veteran's potential employment settings but likely did not prevent working. In June 2018 a private physician reviewed the Veteran's medical history. He summarized the findings of the October 2009 and April 2010 VA examination reports. He also summarized numerous treatment records dated from July 2010 to February 2015. The physician stated that the limitations imposed on the Veteran due to his lumbar spine and headache impairment and the consistency that he experienced the symptoms stemming from those impairments, it was likely that those conditions were the primary cause of the Veteran's disability. He noted that the Veteran's mobility was restricted to the point where he could not perform physical employment, and due to the severity and frequency of his migraine headaches he was unable to perform sedentary employment on a consistent ongoing basis. The physician stated that after thorough review of the medical records, it was his professional opinion that the combined symptomatology of the Veteran's service-connected chronic migraine headaches and degenerative disc disease of the lumbar spine, he was at least as likely as not prevented from maintaining gainful employment from November 24, 2009 through March 12, 2015. Considering the June 2018 private physician opinion, as well as the VA examination reports that showed significant functional impairment due to the Veteran's headache and lumbar spine disabilities, the Board finds that the evidence of record is at least in equipoise regarding whether the Veteran was totally disabled due to service-connected disability from November 24, 2009 to March 12, 2015. Therefore, resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU is granted from November 24, 2009, pursuant to 38 C.F.R. § 4.16(a). See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The earlier effective date of November 24, 2009 is the date entitlement arose, and as this is later than the date of claim, which was received on May 26, 2009, the date entitlement arose is the earliest effective date warranted. See 38 C.F.R. § 3.400. The Board further notes that the greater weight of the evidence indicates that the Veteran was not unemployable solely due to his service-connected disabilities prior to November 24, 2009. The June 2018 private physician did not indicate that the Veteran was unemployable due to service-connected disabilities prior to November 24, 2009 and the October 2009 VA examination report did not indicate that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected headache and lumbar spine disabilities. Accordingly, an earlier effective date of November 24, 2009, but no earlier, is warranted. 2. Entitlement to an effective date prior to March 12, 2015 for eligibility to DEA. For the purposes of educational assistance for dependents under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility 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. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Given that the Board has awarded an earlier effective date of November 24, 2009 for the grant of a total disability rating in the form of a TDIU, the Veteran now has a permanent and total disability rating as of November 24, 2009. Accordingly, the general criteria for DEA were met as of November 24, 2009, and entitlement to an effective date of November 24, 2009 for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35, is warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.