Citation Nr: 21031599 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-18 629 DATE: May 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities result in a combined rating of 10 percent and do not cause the Veteran to be unemployable. 2. The Veteran does not have a permanent total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 2. The criteria for the award of eligibility for DEA under 38 U.S.C., Chapter 35, have not been met. 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1974 to October 1988. In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript of that hearing has been associated with the claims file. 1. Entitlement to TDIU. The Veteran's claim for entitlement to TDIU was received in January 2012. At his March 2018 hearing the Veteran reported that he completed high school and that he had also completed a year and a half of college. He said that he was still thinking about going back to finish his degree. He reported that he had 14 years in Army infantry and then 20 years as a federal police officer. He said that he retired in March 2009 because he could no longer work as a federal police officer due to his knee replacements. He testified that he receives Social Security Administration (SSA) disability. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The Veteran service-connected disabilities are tinnitus rated at 10 percent disabling, bilateral hearing loss rated 0 percent disabling, and hypertension rated 0 percent disabling. His combined evaluation is 10 percent. He has not met the eligibility requirements for a schedular TDIU at any time during the appeal period. An extraschedular TDIU may be considered when a veteran's service-connected disabilities prevent him from securing and following a gainful occupation. 38 C.F.R. § 4.16(b). However, there is no indication that the Veteran's service-connected disabilities have prevented him from securing and following a gainful occupation. The Veteran was determined to be disabled by SSA primarily due to orthopedic disabilities, which are not service-connected disabilities. In September 2010 a private physician opined that the Veteran was unable to work due to his bilateral knee disabilities. The physician did not mention any of the Veteran's service-connected disabilities. Even though the Veteran indicated at his hearing that he could not do his prior job, he did not allege that he was prevented from working due to any of his service-connected disabilities. The evidence does not support further consideration of an extraschedular TDIU. Accordingly, the Veteran's claim for TDIU must be denied. 2. Entitlement to basic eligibility to Dependents' Educational Assistance. Basic eligibility for Chapter 35 benefits is established in one of several ways: (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; 38 C.F.R. § 3.807. In this case the Veteran is alive and he does not have a permanent total service-connected disability. Accordingly, he has not met the requirements for eligibility for DEA benefits at any time during the appeal period and his claim for DEA eligibility must be denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER 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.