Citation Nr: A25020003 Decision Date: 03/05/25 Archive Date: 03/05/25 DOCKET NO. 230821-370585 DATE: March 5, 2025 ORDER Entitlement to an earlier effective date for the grant of individual unemployability (TDIU) is granted, with a new effective date of November 24, 2015, is granted. Entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 USC chapter 35 is granted, with a new effective date of November 24, 2015. FINDINGS OF FACT 1. On November 24, 2015, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. A June 29, 2017 rating decision granted the claim of entitlement to service connection for PTSD; the Regional Office (RO) determined that the record raised the issue of entitlement to a TDIU, deferring the decision for further development. 3. On July 25, 2017, the Veteran provided a VA Form 21-8940, TDIU Application at the request of the RO. 4. On August 7, 2017, the RO sent a letter to the Veteran requesting additional information to substantiate the Veteran's TDIU claim. 5. On September 7, 2017, the RO sent notice to the Veteran with a rating decision denying the claim for entitlement to a TIDU. 6. On September 29, 2017, new and material evidence was received within one year of the September 2017 rating decision which pertained the to the Veteran's employment history and income. 7. Resolving all doubt in favor of the Veteran, the evidence of record demonstrates that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected PTSD prior to November 24, 2015. CONCLUSIONS OF LAW 1. New and material evidence having been received within one year of the September 2017 rating decision, the September 2017 rating decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). 2. The criteria for entitlement to an earlier effective date of November 24, 2015, for the grant of TDIU have been met. See 38 U.S.C. §§ 5103 (a), 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(b), 3.156(c), 3.159, 3.400, 3.340, 3.341, 4.15, 4.16. 3. The criteria for entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance under 38 USC chapter 35 with a new effective date of November 24, 2015 have been met. See 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1976 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) from a February 2023 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review, and this decision has been written consistent with the new AMA framework. In September 2022, the RO issued a rating decision granting entitlement to service connection for TDIU and entitlement to DEA benefits, with an effective date of May 2, 2022. In November 2022, the Veteran filed VA Form 20-0996, Higher Level Review Request seeking an earlier effective date. In February 2023, the RO issued a rating decision granting an earlier effective date of February 11, 2021. Subsequently, the Veteran filed his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), electing the Direct Review docket. See August 2023 Notice of Disagreement, seeking an earlier effective date of November 24, 2015, for TDIU and DEA benefits. Because the Veteran initially requested Higher-Level Review when submitting the November 2022 VA Form 20-0996, Decision Review Request: Higher-Level Review, and the Higher-Level Reviewer determined that there had been a duty to assist error, the claim was transferred to the Supplemental Claim decision review option for additional development. Therefore, the Board may only consider the evidence of record at the time of the February 2023 agency of original jurisdiction (AOJ) decision. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an earlier effective date for the grant of individual unemployability is granted, with a new effective date of November 24, 2015. The Veteran, as argued by his representative, contends that the effective date of his TDIU should be November 24, 2015, the effective date of his service-connected disability of PTSD upon which the TDIU was solely granted. He contends that, pursuant to 38 C.F.R. § 3.156(b), because new and material evidence was submitted within a year after the issuance of the September 5, 2017 rating decision denying TDIU and that new and material evidence was never adjudicated, the claim never became final. As a result, he argues, the claim remained open and has been continuously pursued. Thus, the Veteran argues that under Rice v. Shinseki, 22 Vet. App. 447 (2009), the effective date of the TDIU should be the effective date of the underlying service-connected PTSD disability. See August 2023 Appellate Brief. On November 24, 2015, the Veteran filed a VA Form 21-526EZ, Claim for Application, seeking entitlement to service connection for PTSD, tinnitus, and bilateral hearing loss. In March 2016, the RO denied service connection for PTSD. The Veteran filed a VA Form 21-526 for his PTSD in December 2016. The claim was reconsidered and in June 2017, the RO granted service connection for PTSD, rated at 70 percent with an effective date of November 24, 2015. In the June 2017 rating decision, the RO determined that TDIU was raised by the record and deferred the claim for additional development. The RO requested that the Veteran execute a VA Form 21-8940 TDIU application, which was provided by the Veteran in July 2017. On August 7, 2017, the RO sent a notice letter to the Veteran stating that additional evidence was needed to substantiate his TDIU claim. The letter outlined the type of information being sought by the RO and warned that if no evidence was received, a decision might be rendered 30 days from the date of the August 7, 2017 correspondence. On September 5, 2017, the RO issued a rating decision that denied service connection for TDIU. The notification letter to the Veteran was sent on September 7, 2017. On September 29, 2017, the Veteran submitted a VA Form 21-4138, (Statement in Support of Claim), where the Veteran indicated that he was submitting evidence in response to the August 7, 2017 VA notice letter. Included with the submission of the Statement in Support of Claim were income and tax records, a Social Security Administration individual disability award correspondence, and a written statement from the Veteran articulating his employment history as requested by the RO in its August 7, 2017 letter. No further action was taken by the RO on this claim. The evidence, in the form of income and tax records, and a written statement containing outstanding information requested by the RO, had not been previously submitted to the RO and was not duplicative or cumulative in nature. Id. Further, the evidence is directly related to unestablished facts regarding the Veteran's employment and income history necessary to substantiate his TDIU claim. Id. This is underscored by the fact that this evidence was provided at the request of the RO, as outlined in its August 7, 2017 correspondence. See September 2017 Statement in Support of Claim, see also August 7, 2017 notice letter. Thus, the evidence received by the RO on September 29, 2017, was new and material in connection with the Veteran's TDIU claim that had been denied on September 5, 2017. Generally, within the legacy system under which the September 2017 rating decision is governed, a veteran must file a notice of disagreement to an AOJ decision within one year from the date that the AOJ mails notice of the determination. See 38 C.F.R. §§ 19.52, 20.1103. Otherwise, the decision becomes final. Id.; 38 U.S.C. §§ 7105 (b)(1), (c). 38 C.F.R. § 3.156 (b) acts as an exception to this general rule. VA must consider any new and material evidence received during the one-year appeal period following an AOJ decision "as having been filed in connection with the claim which was pending at the beginning of the appeal period." See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In this case, new evidence was actually and constructively received within one year of the September 2017 rating decision in the form of the Veteran's VA Form 21-4138, (Statement of Support), income and tax records and written statement from the Veteran providing a response to the RO's August 7, 2017 letter regarding employment and educational history. The evidence was not considered and the TDIU claim remained pending until it was adjudicated in February 2022, after the Veteran filed an intent to file form (ITF) on February 11, 2021, and VA Form 20-0995 (Supplemental Claim Application) for TDIU regarding the June 2017 rating decision in February 2022. The Veteran has continuously pursued the issue of an earlier effective date for TDIU and DEA. Turning back to the new evidence received within one year of the September 2017 rating decision, the Board also finds that the evidence is material to the issue on appeal - namely, the evidence received addressed the Veteran's ability to secure or follow gainful employment. The materiality of the evidence is underscored by the fact that it is responsive to the request of said evidence by the RO. As new and material evidence was received within one year of the September 2017 rating decision, the September rating decision did not become final. See 38 C.F.R. § 3.156(b). The question before the Board is whether an earlier effective date for the grant of a TDIU is warranted. The RO granted the Veteran service connection for PTSD as a result of military sexual trauma (MST) with an assigned rating evaluation at 70 percent, effective November 24, 2015. The VA examination in 2017 reflected that the Veteran had occupational and social impairment with reduced reliability and productivity, with symptoms of mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work like settings, and suicidal ideation. He reported in his employment history during the examination that he separated from service because he could not cope with military life and was not able to maintain a job in factory work or with the railroad and "was getting fired." See June 2017 VA examination. In the Veteran's September 2017 statement, he reported that his employment performance issues included the lack of ability to maintain acceptable timely attendance hours due to depression, anxiety, loss of sleep, irritability, aggressive anger and suicidal intentions resulting in lost time working. In support of these statements, suicidal ideation is noted in both the June 2017 VA examination and in April 2004 treatment records. The Veteran was notated as showing his anger through verbal abuse in an April 2004 treatment record, and his aggression is noted explicitly in a Report of Contact by VA staff in June 2003. The record reflects that the Veteran was participating in group anger management therapy in March 2017. See March 2017 VA treatment records. The record reflects that he worked as a self-employed computer technician from 1993 to 1999, and who did not complete an undergraduate education. See May 2022 TDIU Application. The Board observes that the Veteran has several serious chronic medical conditions that are not service connected. The Board observes that the Veteran is in receipt of Social Security Disability for some of these nonservice-connected disabilities. While the Board is not bound by administrative determinations rendered by other governmental agencies, applying laws and regulations distinct from those considered by VA, see Collier v. Derwinski, 1 Vet. App. 413 (1991), this evidence from the Social Security Administration is nevertheless probative as to the Veteran's ability to secure or follow gainful employment. The record is replete with evidence that the Veteran has not been employed and has not received income since at least 2000. The Veteran has stated in treatment records and in correspondence to the VA that he is unable to work due to his deteriorating physical health. See April 2004 treatment records; see also November 2004 correspondence. In 2003, a physician stated that due to his health conditions, the Veteran struggled with ambulating, and it rendered him unable to work. See May 2003 Medical Record. The Board observes that while entitlement to a TDIU is a legal determination, not a medical one, medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013), see Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). In light of the totality of the evidence of record, the Board finds that the evidence is in approximate balance as to whether the Veteran's entitlement to a TDIU arose prior to the date of the November 2015 claim as a result of his service-connected disability of PTSD. Resolving all about in favor of the Veteran, the Board finds that the Veteran's entitlement to a TDIU arose prior to the November 2015 PTSD claim. Based on the foregoing, the Board finds that the criteria for an earlier effective date for the grant of a TDIU have been met, and the proper effective date is November 24, 2015, which is the later of the date of claim and the date entitlement arose. See 38 C.F.R. § 3.400(o). 2. Entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance under 38 USC chapter 35 is granted, with a new effective date of November 24, 2015. The Veteran is in receipt of DEA benefits effective from February 11, 2021, as that was the previous effective date of the award of a TDIU, prior to the award of an earlier effective date for TDIU herein. For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35, the child, spouse or surviving spouse of a veteran or service person will have basic eligibility if the veteran: (1) Was discharged from service under conditions other than dishonorable, or died in service; and (2) 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) Died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. In this case, the award of DEA benefits is based on a permanent total service-connected disability. As the grant of TDIU provides this level of disability, the effective date of the Veteran's eligibility for DEA benefits is contingent on the effective date for TDIU benefits. Accordingly, in light of the grant of an earlier effective date of November 24, 2015, for the award of a TDIU herein, an effective date of November 24, 2015, for DEA eligibility is also warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. 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.