Citation Nr: A22025035 Decision Date: 12/10/22 Archive Date: 12/10/22 DOCKET NO. 210701-169938 DATE: December 10, 2022 ORDER Entitlement to an earlier effective date of August 8, 2001 for the award of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an earlier effective date of August 8, 2001 for basic eligibility to Dependents' Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for bilateral hearing loss was filed August 8, 2001; the RO granted an increased evaluation of 30 percent effective August 8, 2001. 2. The Veteran's claim of entitlement to a TDIU was received October 23, 2002. 3. Resolving all reasonable doubt in his favor, the Veteran's service-connected disabilities, when evaluated in association with his education and occupational experience, have rendered him unable to obtain and maintain substantially gainful employment, effective August 8, 2001. 4. From August 8, 2001, the Veteran has a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of August 8, 2001 for the award of a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an earlier effective date of August 8, 2001 for basic eligibility to Dependents' Educational Assistance (DEA) benefits have been met. 38 U.S.C. §§ 3501, 3510, 5100, 5113; 38 C.F.R. §§ 3.400, 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to December 1970 and from February 1971 to January 1989. The rating decision on appeal was issued in July 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran requested to be placed on the Evidence Docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or his representative, with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to an earlier effective date prior to July 22, 2008 for the grant of a total disability rating based on individual unemployability (TDIU) The Veteran was granted entitlement to a TDIU in a July 2020 rating decision, effective July 22, 2008; he seeks entitlement to an earlier effective date of August 8, 2001, the date of his claim for an increased evaluation for his service-connected bilateral hearing loss. An award based on a claim for an increase in compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of application therefore. 38 U.S.C. § 5110 (a). The effective date for an increased rating may be assigned on the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). For increased ratings claims, however, the RO may assign the earliest date when it is ascertainable that the increase occurred, provided the claim for an increased rating was received within one year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-35 (1992). The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The Board must first determine when entitlement arose for the Veteran's TDIU. The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU prior to July 22, 2008. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to 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, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to July 22, 2008, the Veteran is service connected for bilateral hearing loss, rated as 30 percent from August 8, 2001, and 40 percent from June 6, 2003, and tinnitus, rated as 10 percent effective August 8, 2001. The combined evaluation is 40 percent from August 8, 2001 and 50 percent from June 6, 2003. As such, the Veteran does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a). As such, entitlement to a TDIU, on a schedular basis, is denied. TDIU is currently effective from the date the Veteran first satisfied the schedular requirements for consideration of such in accord with 38 C.F.R. §§ 3.340, 4.16(a), which is July 22, 2008. However, a TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). The Veteran and his representative contend that TDIU should be awarded back to 2001. Initially, as noted above, the Board is precluded from assigning an extraschedular TDIU in the first instance. However, in the present case, the RO has already referred this case to the Director of Compensation Service for consideration of whether the Veteran may be awarded an extraschedular TDIU. Although the Director found that extraschedular TDIU was not warranted, the Board may now make an independent determination on this matter. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The record reflects the Veteran has a high school education and that he last worked in 2001 working with heavy equipment. See June 2003 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran stated he has no other education or training. An April 2003 private audiologist's opinion states the Veteran should stay away from operating heavy machinery due to his hearing loss. In June 2003, the Veteran underwent a VA vocational evaluation, where the VA examiner opined that the severity of the Veteran's symptoms prevents him from obtaining competitive employment. The VA examiner also opined that, due to his hearing disabilities, the Veteran was not qualified for vocational rehabilitation. At the September 2007 Board hearing, the Veteran stated that the VA vocational evaluation noted he only had a 6th grade education level. The Veteran related he worked in the construction business handling heavy equipment. He stated he last worked in November 1999 and stopped working for safety reasons due to his hearing loss. He was unable to obtain training and has not been able to secure employment. The Social Security Administration (SSA) found that the Veteran had several severe impairments, including bilateral hearing loss, chronic asthma, bilateral carpal tunnel syndrome, hypertension, obesity, chronic sinusitis, and chronic pain which defines him as "disabled" within the Social Security Act. The SSA found that the Veteran could not perform past relevant work, he had no transferable skills, and he did not have the residual functional capacity to perform jobs in the national economy. On VA examination in April 2007, the VA examiner concluded that the Veteran's hearing loss would hinder communication even with the use of hearing aids. However, gainful employment would be possible with the use of "state of the art amplification." The Board notes that the February 2008 advisory opinion from the office of the Director of Compensation Service concluded that the Veteran was not entitled to a TDIU on an extraschedular basis. The opinion did not offer any reasoning or facts to support its determination. The foregoing opinion notwithstanding, the Board finds that a TDIU is warranted on an extraschedular basis, prior to July 22, 2008. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran's service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In considering the question of the Veteran's capability of securing and following substantially gainful employment, the evidence indicates that although he is likely qualified to perform less physically demanding work, such as an office/clerical position, he would have significant difficulty due to his bilateral hearing loss. As noted, the Veteran's hearing loss would significantly hinder communication without "state of the art amplification." Given the Veteran's 6th grade education level, it would make it difficult for the Veteran to learn skills required to perform less physically demanding work. The VA vocational evaluation noted the Veteran is not qualified for vocational rehabilitation due to his hearing disability. Thus, the Board is persuaded that the Veteran's service-connected disability has precluded him from securing and maintaining substantially gainful employment since he last worked in 2001. The Board will now address the currently assigned effective date for the Veteran's TDIU. In determining the appropriate effective date for the rating assigned, the question is whether it was factually ascertainable in the year prior to the claim that the criteria for an increased rating were satisfied. The Board finds that it was not factually ascertainable in the year prior to the claim that an increase in the Veteran's disability had occurred. There is no evidence establishing an increase in disability in the year prior to the claim. The claim for an increased rating for bilateral hearing loss, to include a TDIU was received on August 8, 2001. The evidence in the year prior to the increased rating claim does not reflect a TDIU was warranted. The Board finds that an earlier effective date of August 8, 2001 is warranted for the award of TDIU. 2. Entitlement to an earlier effective date prior to July 22, 2008 for basic eligibility to Dependents' Educational Assistance (DEA) benefits In a July 2020 rating decision, the RO indicated that basic eligibility to DEA benefits was established as of July 22, 2008. The Veteran seeks an earlier effective date. Basic eligibility for DEA exists if a veteran, in relevant part, was discharged from service under conditions other than dishonorable, and has a permanent total service-connected disability. 38 C.F.R. §§ 3.807, 21.3021(p). Here, an earlier effective date of August 8, 2001, has been granted for the Veteran's TDIU. Thus, he now satisfies the criteria for DEA benefits effective from that date. Therefore, entitlement to an effective date of August 8, 2001, for DEA benefits is granted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.