Citation Nr: A25035195 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230508-344732 DATE: April 16, 2025 ORDER Entitlement to an earlier effective date for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. Entitlement to an earlier effective date for the award of Dependents' Educational Assistance (DEA) under 38 USC Chapter 35 is denied. FINDINGS OF FACT 1. The March 2023 rating decision granting an August 29, 2012 effective date for the Veteran's award of TDIU was purely an implementation of a March 2023 Board decision and, as such, is a ministerial action and not an appealable decision. 2. The Veteran separated from active service on August 28, 2012. CONCLUSION OF LAW 1. As there is no justiciable case or controversy, the criteria for dismissal have been met with respect to the Veteran's claim for an earlier effective date for TDIU. 38 U.S.C. §§ 7104, 7105; Encarnacion v. McDonough, 36 Vet. App. 194 (2023). 2. The criteria for an effective date prior to August 29, 2012 for the Veteran's award of DEA benefits have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from July 2002 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2023 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In the May 8, 2023, VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 31, 2023 notification of the rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. With respect to the Veteran's earlier effective date claim for DEA benefits, 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. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, 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 TDIU The Board finds that the March 2023 rating decision was not an appealable decision with respect to the issue of an earlier effective date for TDIU. Rather, the March 2023 rating decision was issued purely to implement a March 2023 Board decision. See March 2023 Board decision (granting entitlement to a TDIU effective August 29, 2012); March 2023 rating decision (granting entitlement to a TDIU effective August 29, 2012). Thus, the March 2023 rating decision was not "a 'decision' of the Secretary affecting the provision of benefits," but rather a ministerial action. Encarnacion, 36 Vet. App. at 197. As such, it is not a decision appealable to the Board. Id. at 200. Consequently, the instant appeal as to the effective date of the Veteran's TDIU award is not properly before the Board, and there are no allegations of errors of fact or law for appellate consideration. 38 U.S.C. § 7105. Accordingly, the Board does not have jurisdiction to review the issue on appeal and it is dismissed. The Board notes that, in addition to earlier effective dates for his TDIU, the Veteran asserts that he is entitled to TDIU based on his psychiatric disability alone and to special monthly compensation based on housebound status (SMC(s)(1)). See May 2023 VA Form 10182. The extent to which the May 2023 VA Form 10182 may be construed as a motion for reconsideration of the March 2023 Board decision with respect to the Veteran's TDIU claim is a matter for separate consideration by the Chairman and is not addressed herein. 2. Entitlement to an earlier effective date for DEA benefits The Veteran contends that he is entitled to an earlier effective date for the award of DEA benefits. See May 2023 VA Form 10182. The Board notes that the March 2023 Board decision did not address the issue of the effective date for DEA benefits. As such, the AOJ's grant of an August 29, 2012 effective date for the award of DEA benefits in the March 2023 rating decision is a decision reviewable by the Board. See 38 U.S.C. § 7104(a) (decisions affecting the provision of VA benefits are subject to one review on appeal); Encarnacion, 36 Vet. App. at 36 n. 2 (distinguishing "pure" implementing rating decisions, which do not require any further determinations for an award to take effect, from "mixed" implementing rating decisions, which, in addition to implementing an already-decided issue, adjudicate a previously undecided issue, including down-stream issues such as ratings and effective dates). Legal Criteria The effective date of an award of VA compensation that is based on an original claim or a claim reopened after final disallowance shall be assigned in accordance with the facts found, but an effective date will not be assigned that is earlier than the date of receipt of the application for compensation. Stated differently, the effective date for such a claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.? When a claim is filed within one year of separation from service, the date of claim is the day after separation. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Chapter 35 DEA benefits are payable when: (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. § 3510; 38 C.F.R. § 3.807(a). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the veteran. An approximate balance of the evidence includes but is not limited to equipoise. Lynch, supra. Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. Analysis In this case, the Veteran separated from active service on August 28, 2012. See DD Form 214. 38 C.F.R. § 3.400 provides that the effective date for disability compensation will be the day following separation of service or the date entitlement arose if the claim was received within one year of separation from service. The Veteran was previously granted service connection for numerous disabilities from August 29, 2012, the day following his separation from service and the earliest effective permitted under the law. In its March 2023 decision, the Board granted an effective date of August 29, 2012 for the Veteran's award of TDIU. In its March 2023 rating decision, the AOJ implemented the TDIU effective date granted by the Board. Based on this TDIU award, the AOJ also granted the Veteran an earlier effective date of August 29, 2012 for the award of DEA benefits. Previously, the Veteran's DEA benefits had been effective from April 1, 2015. See September 2020 rating decision. The AOJ's award of an earlier effective date for DEA benefits is a favorable finding supported by the record that the Board will not disturb. See 38 C.F.R. § 3.104(c). See also 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a) (Chapter 35 DEA benefits are payable when: (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). (Continued on the next page) ? Based on the record, the Veteran is already in receipt of the earliest effective date allowable under the law for the award of DEA benefits - August 29, 2012, the day after his separation from service. Accordingly, the Veteran's claim for entitlement to an effective date prior to August 29, 2012 for the award of DEA benefits must be denied. As the evidence of record persuasively weighs against the Veteran's earlier effective date claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. 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.