Citation Nr: 25009205 Decision Date: 07/15/25 Archive Date: 07/15/25 DOCKET NO. 20-02 392 DATE: July 15, 2025 ORDER Entitlement to an earlier effective date of November 25, 2015 for individual unemployability (TDIU) based solely on service-connected prostate cancer residuals is granted. Entitlement to an earlier effective date of November 25, 2015 for Dependents' Educational Assistance under 38 USC Chapter 35 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor from November 25, 2015 the Veteran was precluded from securing or following a substantially gainful occupation as a result of his service-connected prostate cancer disability. 2. The Veteran's remaining service-connected disabilities did not preclude the Veteran from securing or following a substantially gainful occupation. 3. The Veteran had a permanent and total disability from November 25, 2015 for Dependents' Educational Assistance, in which he was entitled to a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of November 25, 2015 for TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for entitlement to an earlier effective date of November 25, 2015 for Dependents' Educational Assistance have been met. 38 U.S.C. §§ 3501, 5113; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from May 1967 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of the April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On his January 2020 VA Form 9, Appeal to the Board of Veterans Appeals, the Veteran requested to appear at a hearing before the Board. In subsequent written correspondence received in April 2022, however, the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(e). In October 2022 and November 2022, VA received Third Party Correspondences stating that the Veteran's hearing requests have been withdrawn. In May 2025, the Veteran was submitted a letter indicating that additional evidence had been associated with his appeal, and informed the Veteran he has the right to have the RO review the additional evidence. However, the Veteran could elect to waive that review. In June 2025, the Veteran submitted a waiver form indicating that he waives his rights to have his case remanded to the RO for a review of additional evidence. Thus, this matter is appropriately before the Board. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an earlier effective date of November 25, 2015 for TDIU The Veteran seeks an effective date prior to January 23, 2018 for a TDIU. TDIU Legal Criteria A 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In 2019, the Court held that substantially gainful employment, in the context, contains economic and noneconomic components; the economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The Board's inquiry must focus on the current severity of the service-connected disabilities and whether they render the veteran unable to obtain or sustain substantially gainful employment, without consideration of the effect of non-service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019); see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Summary of Relevant Evidence On January 23, 2018, the Veteran filed an intent to file form. In February 2018, the Veteran filed an application for increased compensation based on unemployability. In April 2018, the Veteran was awarded a TDIU because the Veteran reported during his March 2018 VA examination that he resigned from his sales job because of the frequency of his urinary voiding and the need to change absorbent materials frequently. The Veteran was awarded an effective date of January 23, 2018, the date he submitted an intent to file form. In February 2018, the Veteran filed an application for increased compensation based on unemployability the Veteran stated that he cannot work due to his heart conditions, bladder, genitourinary, and prostate conditions. He indicated that he worked in sales from 1996 to 2011. He graduated high school. The Board acknowledges that in the May 2022 Board remand, that it was noted that the Veteran had been awarded service connection for non-occlusive coronary artery disease, effective March 16, 2016. The Veteran was appealing an earlier effective date for his condition, and the Board remanded this matter, noting the issues were intertwined. In the January 2023 rating decision, the Veteran was granted an earlier effective date of his non-occlusive coronary artery disease, effective November 25, 2015. In the November 2016 VA examination for the Veteran's heart, the examiner indicated that the Veteran could perform activities such as eating, dressing, taking a shower, slow walking (2 mph) for 1-2 blocks. He could perform work that was sedentary. Thus, the applicable appeal period is from November 25, 2015, the effective date of service connection for that disability, through the present. See 38 C.F.R. § 3.400. As of November 25, 2015, the Veteran was service connected for prostate cancer at a 60 percent disability rating; hypothyroidism at a 10 percent disability rating; non-occlusive coronary artery disease rated at 10 percent; symptom complex consistent with pyloroduodenal irritability at 0 percent; erectile dysfunction at 0 percent; residual scars at 0 percent; and hypertension at 0 percent. Analysis Resolving reasonable doubt in the Veteran's favor the Board finds that an earlier effective date of November 25, 2015 is warranted for the Veteran's claim for entitlement to a TDIU, for the Veteran's combined service-connected disabilities. The Veteran formally raised a claim for TDIU in February 2018, indicating that he cannot work due to his heart conditions, bladder, genitourinary, and prostate conditions. However, on November 25, 2015, the Veteran filed an intent to file for his coronary heart disease, which ultimately also raised a claim of a TDIU based on the record. Thus, the appeal period for the Veteran's claim of entitlement to a TDIU began on November 25, 2015. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's prostate cancer precluded the Veteran from securing or following a substantially gainful occupation throughout the appeal period (November 25, 2015). While the Board acknowledges that the Veteran would possibly be able to do clerical work, with his reports of frequent urination, the Board resolves reasonable doubt in the Veteran's favor that this could possibly preclude him from working. The Board finds that the probative evidence is against finding that the Veteran's remaining combined disabilities (other than the prostate cancer) precluded the Veteran from securing or following a substantially gainful occupation, as of November 25, 2015. The Board finds that his work history would not prevent him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Veteran's occupational profile would not allow the Veteran to perform physically exerting tasks that require him to be on his feet all day, and would require him to have the ability to sit frequently to complete the tasks. Specifically, the Veteran's heart condition limited the Veteran's ability to walk long distances as he had to walk slowly. His heart condition also required him to sit for significant portions of the day. The Veteran reported his hypothyroidism limited his ability to work, as his legs would swell. He also noted balance problems. See May 2022 Witness Statement. The Board notes that limitations in walking based on the Veteran's heart condition, hypothyroidism, and remaining service-connected disabilities would still allow the Veteran to secure administrative jobs, do clerical work, sorting, or security monitoring (watching monitors and reporting any irregularities). The Board does not find, and the Veteran has not contended that the Veteran's symptom complex consistent with pyloroduodenal irritability or erectile dysfunction disabilities would further preclude the Veteran from securing or following a substantially gainful occupation throughout the appeal period. However, the Board finds that resolving reasonable doubt in the Veteran's favor, his prostate cancer residuals precluded the Veteran from securing or following a substantially gainful occupation. Thus, an earlier effective date of November 25, 2015 (the entire appeal period), for a TDIU is warranted. 2. Entitlement to an earlier effective date of November 25, 2015 for Dependents' Educational Assistance under 38 USC Ch. 35 (Continued on the next page) ? Basic eligibility for DEA benefits exists if a Veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total 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). In this case, the Veteran had a permanent and total service-connected disability effective on November 25, 2015, the date of the grant of TDIU, as the disabilities upon which that grant may reasonably be expected to continue throughout his life. Therefore, an earlier effective date for the award of basic eligibility to DEA benefits is granted from that date. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist, 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.