Citation Nr: A25035262 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241007-480187 DATE: April 16, 2025 ORDER Entitlement to an effective date prior to October 1, 2006, for the grant of a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to an effective date prior to October 1, 2006, for the grant of eligibility for Dependents' Educational Assistance (DEA), under 38 U.S.C. Chapter 35, is denied. FINDINGS OF FACT 1. In a May 2020 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU and DEA, under 38 U.S.C. Chapter 35, assigning an effective date of October 1, 2013, the date following the last date of work. 2. In a May 2021 rating decision, the AOJ established an earlier effective date of January 15, 2013, the date the schedular criteria were met, and found employment at that time was marginal. 3. In a September 2021 rating decision, a retroactive increase was established in the evaluation of lumbosacral strain, degenerative disc disease L-4 L-5, to 40 percent disabling, effective October 1, 2006. 4. The evidence of record does not reflect that the Veteran was unable to secure or follow a substantially gainful employment as a result of her service-connected disabilities prior to October 1, 2006. 5. Prior to October 1, 2006, the Veteran's condition did not present such an unusual disability picture to warrant referral to the Director of Compensation and Pension Service because the evidence does not show a marked interference with employment or frequent periods of hospitalization due to the service-connected condition(s) as to render impractical the application of the regular schedular standards. 6. Prior to October 1, 2006, the Veteran did not have a single service-connected disability rated at 60 percent disabling or more (to include the combined evaluation of service-connected disabilities of the same bodily system). 7. Prior to October 1, 2006, the Veteran did not have 2 or more service-connected disabilities with at least one of the disabilities rated at 40 percent disabling or more and the additional service-connected disabilities bringing the combined disability rating to 70 percent or more. 8. Eligibility for DEA, under 38 U.S.C. Chapter 35, arose on October 1, 2006. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to October 1, 2006, for the grant of a TDIU have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110, 7104, 7105, 7111; 38 C.F.R. §§ 3.1(p), 3.155 (2014); 38 C.F.R. §§ 3.102, 3.151, 3.157, 3.400, 4.16, 20.200, 20.201, 20.202, 20.302, 20.1400-20.1411. 2. The criteria for entitlement to an effective date prior to October 1, 2006, for the grant of eligibility for DEA, under 38 U.S.C. Chapter 35, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from September 1997 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in the October 2023 rating decision, the AOJ granted entitlement to an earlier effective date for the grant of a TDIU and DEA, under 38 U.S.C. Chapter 35, with a new effective date of October 1, 2006. The Veteran subsequently appealed the October 2023 rating decision with the submission of an October 2024 VA Form 10182 (Notice of Disagreement). In the October 2024 Notice of Disagreement, the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the AOJ's October 2023 rating decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the October 2023 rating decision, unfortunately, the Board could not consider it in making its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. If the Veteran would like the 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, the 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. As a preliminary matter, the Board interprets the Veteran's Notice of Disagreement as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of the Veteran's right to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024). 1. Entitlement to an effective date prior to October 1, 2006, for the grant of a TDIU. See section 2 below. 2. Entitlement to an effective date prior to October 1, 2006, for the grant of eligibility for DEA, under 38 U.S.C. Chapter 35. The Veteran contends that she is entitled to an effective date earlier than October 1, 2006, for the grant of entitlement to a TDIU and DEA, under 38 U.S.C. Chapter 35. Specifically, the Veteran asserts that she has been unemployable since 2003. See October 2024 Notice of Disagreement. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020); see also, Ray v. Wilkie, 31 Vet. App. 58 (2019). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). Generally, when the schedular rating is less than total, a total disability rating may be assigned when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A claim for a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also, Harper v. Brown, 10 Vet. App. 125 (1997). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). A claim for benefits for a disability "might also include an assertion of entitlement to TDIU based on that disability (either overtly stated or implied by a fair reading of the claim or the evidence of record)." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, in a May 2020 rating decision, the AOJ granted entitlement to a TDIU and DEA, under 38 U.S.C. Chapter 35, assigning an effective date of October 1, 2013, the date following the last date of work. In a May 2021 rating decision, the AOJ established an earlier effective date of January 15, 2013, the date the schedular criteria were met, and found that employment at that time was marginal. In a September 2021 rating decision, a retroactive increase was established in the evaluation of lumbosacral strain, degenerative disc disease L-4 L-5, to 40 percent disabling, effective October 1, 2006. Accordingly, the appropriate date for the TDIU claim, in this case, is October 1, 2006, as the record reflects that the Veteran met the schedular requirements to be eligible for a TDIU as of October 1, 2006, the effective date of the Veteran's 40 percent disability rating for her service-connected lumbosacral strain, degenerative disc disease L-4 L-5. Prior to October 1, 2006, the Veteran did not have a single service-connected disability rated at 60 percent disabling or more nor did the Veteran have 2 or more service-connected disabilities with at least one of the disabilities rated at 40 percent disabling or more and the additional service-connected disabilities bring the combined disability rating to 70 percent or more. This is true even when combining disabilities of the same bodily system (orthopedic). See 38 C.F.R. § 4.16(a). Before the Veteran's 40 percent disability rating for her service-connected lumbosacral strain, degenerative disc disease L-4 L-5, was effective on October 1, 2006, the Veteran had disability ratings of 10 percent for left knee, patellofemoral syndrome, 10 percent for right knee, patellofemoral syndrome, 10 percent for a left hip strain, 10 percent for a tender scar, right foot, status post-surgery third metatarsal head, 20 percent for a lumbosacral strain, 0 percent for a left shin splint, and 0 percent for a right shin splint for a combined total evaluation of 50 percent. Moreover, the Board finds that the evidence of record does not reflect that the Veteran was unable to secure or follow substantially gainful employment as a result of her service-connected disabilities prior to October 1, 2006. For example, at a January 2004 VA Examination, the Veteran reported that she had started jogging, had no problems with her hips for the previous three months, and denied being bedridden for several days due to back pain. She also reported pain in her knees with running and traversing long flights of stairs. Similarly, at a March 2006 VA Examination, although the Veteran reported not being employed, she stated that she cared for her young children at the time, lifting and picking them up when the pain was not too severe, and cleaning her house. The examiner documented her ambulatory nature at the time to be of a normal station and gait, with her never using any prosthetic devices such as canes, crutches, walkers, or braces. It was also reported at that time that her back pain does not interfere with her normal daily activity except as described above. As noted above, VA regulations provide that the effective date of an award of increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). In this case, the date of receipt of the claims that support the schedular TDIU rating is October 08, 2003, and the date entitlement arose is October 1, 2006. Thus, the proper effective date is the date that the entitlement arose, i.e., October 1, 2006. Furthermore, prior to October 1, 2006, the Veteran's condition did not present such an unusual disability picture to warrant referral to the Director of Compensation and Pension Service because the evidence does not show a marked interference with employment or frequent periods of hospitalization due to the service-connected condition(s) as to render impractical the application of the regular schedular standards. Accordingly, the Board finds that the weight of the evidence is against assigning an effective date earlier than October 1, 2006, for the award of entitlement to a TDIU, as this is the latter of the date of receipt of the claims and the date entitlement arose. Therefore, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since an earlier effective date of TDIU is denied, an earlier effective date of entitlement to DEA, under 38 U.S.C. Chapter 35, must also be denied. In this regard, for purposes of DEA, under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.807(a), 21.3021. (Continued on the next page) With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). With respect to this matter, because entitlement to a TDIU has not been shown to be earlier than October 1, 2006, the effective date for entitlement to eligibility for DEA, under 38 U.S.C. Chapter 35, also cannot be earlier than October 1, 2006. Accordingly, an earlier effective date for entitlement to eligibility for DEA, under 38 U.S.C. Chapter 35, must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Browne, 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.