Citation Nr: A25035882
Decision Date: 04/18/25	Archive Date: 04/18/25

DOCKET NO. 241210-493326
DATE: April 18, 2025

ORDER

Entitlement to an effective date earlier than April 9, 2018, for the award of a total disability rating based upon individual unemployability (TDIU) is denied.

Entitlement to an effective date earlier than April 9, 2018, for the award of Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied.

FINDINGS OF FACT

1. The Veteran filed a claim for entitlement to a TDIU that was received by VA on April 9, 2018; there were no prior pending unadjudicated TDIU claims.

2. It is not factually ascertainable that entitlement to a TDIU arose in the one year period prior to the April 9, 2018, claim.

3. Prior to April 9, 2018, the Veteran was not in receipt of a permanent and total rating.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than April 9, 2018, for the award of a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.16, 4.18, 4.19.

2. The criteria for an effective date earlier than April 9, 2018, for the award of Dependents' Educational Assistance under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from April 1966 to October 1969.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 agency of original jurisdiction (AOJ) 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. 

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. 

The Board is cognizant of the recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in the case of Williams v. McDonough, 37 Vet. App. 305 (2024). There, the Court held, in essence, that the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2). The Board observes that the period to change AMA dockets per 38 C.F.R. § 20.202(c)(2) has not elapsed. However, the Veteran waived his right to select a different Board option and requested that the Board review his appeal as soon as possible in a January 2025 submission. Therefore, the Board will proceed with its adjudication.

Further, the Board is cognizant of the Court's holding in Edwards v. McDonough that new evidence submitted with a VA Form 10182 on which the Direct Review option is selected creates uncertainty as to which Board review option the claimant intended, triggering the Board's duty to seek clarification under 38 C.F.R. § 20.202(f). Edwards v. McDonough, 36 Vet. App. 56 (2023). The Court reasoned, in-part, that consideration must be given to the "full context within which [veterans'] submissions are made" including liberally construing the filings of pro se claimants. Id. (citing Rivera v. Shinseki, 654 F.3d 1377, 1380, 1382 (Fed. Cir. 2011)). Here, new evidence was not submitted with the December 2024 VA Form 10182; rather, the evidence submitted was already of record before the AOJ's decision. Therefore, the Board shall proceed with its adjudication.

Effective Date Criteria

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 U.S.C. § 5110; 38 C.F.R. § 3.400.

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a).

Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006).

In order to be new and material evidence, the evidence must not be cumulative or redundant and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991).

When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying AOJ decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b).

The United States Court of Appeals for the Federal Circuit recently held that the creation of VA treatment records containing new and material evidence within one year of a legacy decision may vitiate the finality of that decision, without regard to whether VA adjudicators are notified of the existence of these records within one year of the issuance of that decision. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).

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 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). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

Moreover, under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the notice of a decision was issued. 38 C.F.R. § 3.2500(c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). Following notice of a decision on an initial claim or a supplemental claim, continuous pursuit can be established by filing a supplemental claim (VA Form 20-0995), request a higher-level review (VA Form 20-0996), or appeal to the Board of Appeals (VA Form 10182). 38 C.F.R. § 3.2500(c)(1).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to an effective date earlier than April 9, 2018, for the award of a TDIU is denied.

The Veteran essentially contends that an effective date earlier than April 9, 2018, for the award of a TDIU is warranted. See December 2024 VA Form 10182. Indeed, the Veteran indicates that the effective date should be July 12, 2013, the effective date of his service-connected psychiatric and lumbar spine disabilities. He asserts that he has continuously pursued his claim. See December 2024 argument submitted with VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement).

Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341. Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering a veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013).

In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

By way of background, the record reflects that the Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in March 2016. The Veteran indicated that he last worked fulltime as a Tech translator/systems engineer in May 2007. He indicated that his spinal disorder affected full-time employment in July 2013, that he has a bachelor's degree in information technology and that he is unable to work due to exertional limitations he has due to his service-connected disabilities.

The AOJ denied entitlement to a TDIU in a May 2016 legacy rating decision. The Veteran was provided notice of this decision in a May 2016 letter and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Further, the Board notes that no relevant VA treatment records were created within one year of the rating decision relevant to TDIU. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R.            § 3.156(b), (c). Therefore, the May 2016 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Notably, the Veteran's representative submitted a January 2018 legacy notice of disagreement appealing the May 2016 rating decision. The AOJ determined that the notice of disagreement was untimely, and the Veteran appealed this determination to the Board. An October 2023 Board decision found that the January 2018 notice of disagreement was untimely. As the May 2016 legacy rating decision is final, the Board finds that the Veteran's argument that he has continuously pursued his claim since the May 2016 legacy rating decision to be without merit.

In April 2018, the Veteran submitted a supplemental claim for service connection for peripheral neuropathy and spinal disorder as well as for TDIU. A June 2018 legacy rating decision denied entitlement to service connection for left leg neuritis, right lower extremity peripheral neuropathy, right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy as well as entitlement to a TDIU. The Veteran timely appealed the decision, and the Board granted entitlement to service connection for right lower extremity radiculopathy and remanded the claim for a TDIU for further development in October 2023. In May 2024, the AOJ granted TDIU effective from April 9, 2018, the date of the claim for TDIU.

As noted above, the AOJ awarded TDIU and assigned an effective date of April 9, 2018, the date of the supplemental claim for TDIU, in a May 2024 AMA rating decision. The Veteran has not identified nor has the Board's review of the record disclosed a formal or informal claim for benefits between the May 2016 final legacy rating decision and the current April 9, 2018 effective date. See 38 C.F.R.        §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). There were no submissions of this kind between the May 2016 legacy rating decision and the April 9, 2018 supplemental claim. Thus, the evidence provides no basis for an award of a TDIU prior to April 9, 2018.

With regards to the one-year look back period prior to the April 9, 2018, date of claim, the Board observes there is no indication from the record that the Veteran's inability to obtain and maintain gainful employment as a result of his service connected disabilities had its onset during this time. There are no pertinent treatment records, reports, or medical opinions addressing the Veteran's ability to obtain and maintain gainful employment. The Veteran himself indicated that he became too disabled to work in February 2013, which is earlier than the one year look back period prior to April 9, 2018. See 38 C.F.R. § 3.400(o)(2); March 2016 VA Form 21-8940.

In sum, the Board finds that in the year prior to April 9, 2018, there was no evidence associated with the record that would support entitlement to TDIU and it is therefore not factually ascertainable that TDIU was warranted within one year prior to April 9, 2018. Moreover, the Board notes that within one year prior to April 9, 2018, the VA had not received a standalone claim for TDIU, there were no unadjudicated claims for TDIU, and the Veteran had not otherwise submitted a claim for increased rating based on a service-connected disability or disabilities precluding him from employment. Moreover, the issue of entitlement to an award of TDIU was not reasonably raised by the record one year prior to April 9, 2018.

Accordingly, the Board finds that an effective date earlier than April 9, 2018, for the award of a TDIU is not warranted. The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra.

2. Entitlement to an effective date earlier than April 9, 2018, for the award of Dependents' Educational Assistance under 38 U.S.C. Chapter 35

The Veteran generally asserts that an earlier effective date is warranted for the grant of Dependents' Educational Assistance benefits. Specific argument in support of this appeal has not been submitted.

The Board's denial of an earlier effective date for the award of TDIU precludes the assignment of an effective date prior to April 9, 2018, for the award of Dependents' Educational Assistance benefits.

In this regard, for purposes of Dependents' Educational Assistance benefits 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. 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).

A total disability may be assigned where a veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if a veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341.

Here, the currently assigned effective date of April 9, 2018, for basic eligibility for Dependents' Educational Assistance benefits was directly related to the award of a TDIU. See May 2024 Rating Decision (granting the award of entitlement to a TDIU of effective April 9, 2018, and establishing an effective date for the award of entitlement to Dependents' Educational Assistance benefits that same date).

Since eligibility for Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) rating, the effective date of such eligibility cannot precede the April 9, 2018, TDIU award. See May 2024 Rating Decision Codesheet (reflecting that, prior to April 9, 2018, the Veteran's service-connected disabilities, had a maximum combined rating of 90 percent).

Accordingly, although the Veteran contends that the effective date should be earlier than April 9, 2018, the assignment of an effective date prior to April 9, 2018, for the award of Dependents' Educational Assistance benefits is precluded by law. See 38 U.S.C. §§ 3501(a)(1), 5113(a); 38 C.F.R. §§ 3.807(a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). As the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is denied.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. McPhaull, 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.