Citation Nr: 25008303 Decision Date: 06/24/25 Archive Date: 06/24/25 DOCKET NO. 18-07 711 DATE: June 24, 2025 ORDER Entitlement to an earlier effective date for a total disability rating for compensation based on individual unemployability (TDIU) on an extraschedular basis from June 20, 2014, is granted. Entitlement to an earlier effective date for entitlement to basic eligibility for Dependents' Educational Assistance (DEA) from June 20, 2014, is granted. FINDINGS OF FACT 1. The VA Agency of Original Jurisdiction (AOJ) has documented receipt of an intent to file a claim from the Veteran on June 20, 2014. 2. The Veteran filed a VA Form 21-526EZ "Application for Disability Compensation and Related Compensation Benefits" that included a claim for an increased rating for the Veteran's service-connected back disability that was received on June 30, 2014. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from June 20, 2014. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for TDIU on an extraschedular basis from June 20, 2014, but no earlier, are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.16(b). 2. The criteria for basic eligibility for DEA from June 20, 2014, but no earlier, are met. 38 U.S.C. §§ 3501, 5110, 5113; 38 C.F.R. §§ 3.155, 3.400, 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to March 1985. This matter was originally before the Board of Veterans' Appeals (Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On October 12, 2021, the Veteran's representative withdrew the Veteran's request for a hearing before Board. Following remands by the Board in March 2023, July 2023, and December 2023, a March 2024 Board decision granted TDIU on an extraschedular basis and basic eligibility for DEA effective from May 21, 2015. In an Order dated in January 2025, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the Board's March 2024 decision to the extent that it denied effective dates prior to May 21, 2015, for the awards of TDIU on an extraschedular basis and basic eligibility for DEA. I. Legal Criteria When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application. Id. TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU can also be awarded on an extra-schedular basis under 38C.F.R. §4.16(b) if it is determined that the Veteran is unemployable by reason of service-connected disability but fails to meet the percentage standards set forth in 38 C.F.R. §4.16(a). However, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA's Director of Compensation Service (Director) for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). DEA, under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a child, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501; 38C.F.R. §§21.3020, 21.3021. Basic eligibility for certification of DEA exists if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1)has a permanent and total service-connected disability; (2) a permanent total service-connected disability was in existence at the date of the Veteran's death; (3) died as a result of a service-connected disability; or(4) if a service member is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38C.F.R. §3.807(a). ? Generally, the effective date of an award of a service connection claim is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought, within one-year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b); Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110, 1147 (Fed. Cir. 2021). II. Analysis Prior to October 27, 2016, the Veteran's only service-connected disability was a back strain disability that was rated at 40 percent disabling. Therefore, the Veteran did not at that time meet the criteria for consideration of a TDIU on a schedular basis under 38 C.F.R. §4.16(a). Accordingly, the Board issued a December 2023 remand that referred the matter of entitlement to TDIU on an extra-schedular basis consideration under 38C.F.R. §4.16(b) to the Director. Thereafter, a January 2024 Decision Review Operations Center memorandum to the Director recommended that the Veteran be granted entitlement to TDIU on an extra-schedular basis from June 20, 2014. In pertinent part, the memorandum cited May 2015 medical evidence that indicated that the Veteran was unable to perform substantially gainful employment as a result of his back symptoms. In response the above, a January 2024 Advisory Opinion from the Director of found that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. The Director did acknowledge that there would be some impairment of occupational functioning due to the service-connected back disability, especially physical types of employment, but ultimately ruled that entitlement to extra-schedular TDIU benefits was not warranted as the Veteran was capable of sedentary employment. This determination was not binding upon the Board and does not constitute medical evidence. Wages v. McDonald,27 Vet. ? App. 233, 239 (2015), and the Board determined in its aforementioned March 2024 decision that the lay evidence of record outweighed the Director's Advisory Opinion, and that the Veteran was entitled to TDIU on an extraschedular basis effective from May 21, 2015. The Board also in this decision found that the derivative benefit of basic eligibility for DEA, which was dependent on the award of TDIU, was also warranted effective from May 21, 2015. The JMPR found fault as follows with the Board's determination in its March 2024 decision that entitlement to TDIU on an extraschedular basis was not warranted prior to May 21, 2015: In particular, the Board failed to address an October 2021 statement in which Appellant relayed symptomatology resulting from his back condition "since I filed my claims in June 2014" and reported: "I have to take strong pain medication to try to get any relief and that makes me sleepy and groggy." [] See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that taking heavy medication for a service-connected disability is a factor that may affect a claimant's employability). Therefore, the Board on remand must provide an adequate statement of reasons or bases discussing this relevant evidence. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). The undersigned emphasizes that the impact of medication in evaluating the severity of service-connected disability-particularly musculoskeletal conditions such as the service connected back disability at issue herein-held by Fisher discussed in the JMPR has been reinforced in a recent by the Court. See Ingram v. Collins, No. 23-1798 (Vet. App. 2025). Also and as noted by the Veteran's attorney in argument submitted in May 2025, the Veteran in the October 2021 statement reference in the JMPR also reflected his reporting that he stopped working in 2011 ? when his doctor told him he could not work any longer due to his service-connected back disorder; that his back disorder had been of the same severity since he filed his claim in June 2014; and that he could not have worked any job since that time due to service connected disability. Review of the record in the instant case reveals the RO documenting receipt of an intent to file a claim from the Veteran on June 20, 2014, and receipt on June 30, 2020, of a VA Form 21-526EZ that included a claim for an increased rating for the service-connected back disorder. Since the completed application received on June 30, 2020, was filed within one year of the receipt of his intent to file, this application is considered filed as of the date VA received the Veteran's intent to file pursuant to 38 C.F.R. § 3.155(b). In addition, a claim for TDIU is part and parcel of an underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). As such, and as noted in the March 2024 Board decision, the appeal period as to entitlement to TDIU on an extraschedular basis extends to June 20, 2014. In short, while there is some negative evidence with respect to this determination, the undersigned finds that the positive evidence represented by the Veteran's October 2021 statement-particularly in light of the importance of the effects of medication as emphasized by the Court-places the positive and negative evidence as to whether the Veteran's service connected disabilities rendered him unable to secure or follow a substantially gainful occupation from June 20, 2014, in approximate balance. As such, and after resolving all reasonable doubt in the Veteran's favor, entitlement to TDIU on an extraschedular basis is warranted from June 20, 2014. 38 U.S.C. §§ 5107, 5110; 38C.F.R. §§ 3.102, 4.16(b); Gilbert, Lynch, supra. The Board again notes the Veteran's claim for an earlier effective date for DEA benefits is a derivative of an award TDIU award, as basic eligibility for DEA ? benefits exists if a Veteran has a permanent total service-connected disability. As adjudicated above, an earlier effective date for a TDIU on an extraschedular basis has been granted from June 20, 2014. Therefore, an effective date of June 20, 2014, is also warranted for DEA eligibility. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahlberg, Andrew 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.