Citation Nr: A25035235 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210722-174006 DATE: April 16, 2025 ORDER The claim of entitlement to an earlier effective date for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. The claim of entitlement to an earlier effective date for basic eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. While the present appeal was pending, a May 2022 Board of Veterans' Appeals (Board) decision adjudicated the issue of entitlement to a TDIU for the entirety of the appeal period. 2. The Veteran is found to have a permanent, total service-connected disability based on the TDIU rating assigned September 1, 2016 and the effective date for DEA benefits corresponds to the effective date for TDIU. CONCLUSIONS OF LAW 1. The Board is barred by res judicata from readjudicating the issue of entitlement to an earlier effective date for the award of a TDIU. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. 2. The criteria for entitlement to an earlier effective for the award of basic eligibility for DEA benefits have not been met. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 2002 to June 2002. This matter comes before the Board on appeal from a July 2020 rating decision of the Department of Veterans Affairs (VA) regional office (RO) which granted entitlement to a TDIU, effective June 1, 2017, and awarded an earlier effective date of June 1, 2017 for eligibility to DEA under 38 U.S.C. Chapter 35. In July 2021, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and chose the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the July 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], 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. The claim of entitlement to an earlier effective date for the award of a TDIU is dismissed. The Veteran maintains entitlement to an effective date earlier than June 1, 2017 for the award of a TDIU. As resolution of this appealed issue is dependent on the timing of certain occurrences, the Board concludes that a brief recitation of pertinent facts would be helpful. In February 2013, the Veteran sought to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) with depressive disorder and anxiety disorder. The Veteran's claim was granted in an April 2014 rating decision. The AOJ assigned an initial 50 percent disability rating, effective February 5, 2013. Within one year of issuance of the initial rating decision, the Veteran requested an increased disability rating for her service-connected acquired psychiatric disability. The AOJ continued the 50 percent disability rating in an April 2015 rating decision, and the Veteran appealed under the Legacy review system. During the pendency of the appeal, the AOJ increased the Veteran's disability rating to 100 percent and found her eligible for DEA under 38 U.S.C. Chapter 35, both effective June 2, 2017. However, as the Veteran was not awarded a 100 percent disability rating for her service-connected acquired psychiatric disability for the entire appeal period, her increased rating claim remained before the Board. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In January 2020, the Board issued a decision denying the Veteran's claim of entitlement to a disability rating in excess of 50 percent prior to June 2, 2017 for her acquired psychiatric disability, and remanding the issue of entitlement to a TDIU, which it found was reasonably raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). During the remand development period, the AOJ awarded entitlement to a TDIU, effective June 1, 2017, and awarded an earlier effective date of June 1, 2017 for the Veteran's eligibility for DEA under 38 U.S.C. Chapter 35 in a rating decision dated July 2020. In response to the July 2020 rating decision, the Veteran filed the VA Form 10182 seeking earlier effective dates which generated the instant appeal. As this series of events occurred, the Veteran appealed the portion of the January 2020 Board decision which denied the Veteran's claim of entitlement to a disability rating in excess of 50 percent prior to June 2, 2017 for her acquired psychiatric disability to the U.S. Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued a Joint Motion for Partial Remand (Joint Motion) which vacated and remanded that portion of the January 2020 Board decision back to the Board for readjudication consistent with its findings. In May 2022, the Board issued another decision in response to the Joint Motion. The Board found the Veteran entitled to a 70 percent disability rating for her service-connected acquired psychiatric disability, effective February 5, 2013, which represents the beginning of the appeal period. The Board also awarded entitlement to a TDIU effective September 1, 2016, but no earlier, finding that this is the date at which the Veteran became unable to obtain and maintain a substantially gainful occupation. Based on the above, the Board finds that the issue of entitlement to an earlier effective date for a TDIU is now moot, as the Board has effectively denied the claim in its May 2022 decision and is thus barred by res judicata from readjudicating the issue. The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. See Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose"). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (stating that the "purpose of the rule of finality is to preclude repetitive and belated readjudication of veterans' benefits claims.") (quoting Cook v. Principi, 318 F.3d 1334, 1339)); see also Bissonnette v. Principi, 18 Vet. App. 105, 112 (2004) ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three."). As mentioned, the May 2022 Board decision adjudicated the issue of entitlement to a TDIU for the entire appeal period, encompassing the period from the present claim in the Appeals Modernization Act (AMA) review system. Since this issue was already adjudicated in a Legacy Board decision, the Board is barred from readjudicating it. The appeal is dismissed. 2. The claim of entitlement to an earlier effective date for basic eligibility for DEA benefits under 38 U.S.C. Chapter 35 is denied. The Veteran maintains entitlement to an earlier effective date for basic eligibility for DEA benefits under 38 U.S.C. Chapter 35. The Veteran was awarded an earlier effective date of September 1, 2016 for this benefit in a May 2022 rating decision, based upon the Board's finding that she was permanently unable to obtain or maintain a substantially gainful occupation as of that date. Thus, at issue in this case is whether an even earlier effective date is warranted. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In this case, the effective date for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature by virtue of her TDIU rating. In an unappealed May 2022 Board decision, the Board found that a September 1, 2016 effective date, but no earlier, is warranted for the award of a TDIU. Therefore, the Board finds that an earlier effective date for the inextricably intertwined issue of basic eligibility to DEA benefits is not warranted. Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Roberts 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.