Case A26029455

MICHAEL J. SKALTSOUNIS · 2026 · Case ID: A26029455

GRANTED

Summary

The veteran, who served in the United States Army from July 1974 to July 1977, appealed multiple rating decisions. The veteran initially sought an increased rating for coronary artery disease and old myocardial infarction, but this claim was dismissed as the veteran requested withdrawal during a Board hearing. The Board granted entitlement to an initial rating of 10 percent for a deviated septum, finding that the evidence, including private examinations, CT scans, and the veteran's testimony, supported complete obstruction of the right nasal passage from August 20, 2015. The Board also granted entitlement to Total Disability based on Individual Unemployability (TDIU) from January 22, 2021, noting the veteran's service-connected disabilities, including obstructive sleep apnea, coronary artery disease, myocardial infarction, kidney disease, tinnitus, deviated septum, and hypertension, rendered him unable to maintain substantially gainful employment. Consequently, the Board granted special monthly compensation (SMC) at the housebound rate and dependent's educational assistance (DEA) benefits from January 22, 2021, based on the TDIU grant. The Board applied the benefit of the doubt in granting the TDIU and SMC claims.

Service Branch

ARMY

Special Benefit

SMC - HOUSEBOUND; TDIU

Docket No.

210521-161308

Full Decision Text

Citation Nr: A26029455
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 210521-161308
DATE: April 1, 2026

ORDER

Entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction is dismissed.

From August 20, 2015, but not earlier, entitlement to an initial rating of 10 percent for deviated septum is granted.

From January 22, 2021, but not earlier, entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU) is granted.

From January 22, 2021, but not earlier, entitlement to special monthly compensation (SMC) at the housebound rate is granted.

From January 22, 2021, but not earlier, entitlement to dependent's educational assistance (DEA) benefits is granted.

FINDINGS OF FACT

1. On August 26, 2024, prior to the promulgation of a Board of Veterans' Appeals (Board) decision in the appeal, the Board received notification from the Veteran, requesting withdrawal of the Veteran's appeal of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction.

2. From August 20, 2015, the most probative and persuasive evidence shows that the Veteran's deviated nasal septum has manifested as complete obstruction of the nasal passage on one side.

3. From January 22, 2021, the Veteran's service-connected disability renders him unable to maintain gainful employment.

4. From January 22, 2021, the Veteran meets the requirements for SMC at the housebound rate.

5. From January 22, 2021, the Veteran has a total disability that is permanent in nature.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. From August 20, 2015, but not earlier, the criteria for entitlement to an initial rating of 10 percent for traumatic deviation of nasal septum have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.97, Diagnostic Code 6502.

3. From January 22, 2021, but not earlier, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19.

4. From January 22, 2021, but not earlier, the criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114(s), 5107; 38 C.F.R. § 3.350(i).

5. From January 22, 2021, but not earlier, the criteria for entitlement to DEA benefits have been met. 38 U.S.C.§§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.102, 3.807, 3.400, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from July 1974 to July 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 18, 2021, March 9, 2021, and April 22, 2021, Appeals Modernization Act (AMA) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ).

The February 18, 2021, rating decision denied the Veteran's supplemental claim for an initial compensable rating for deviated septum. The March 9, 2021, rating decision granted the Veteran's claim of service connection for coronary artery disease and old myocardial infarction with a rating of 30 percent. As such, the Veteran claims entitlement to a rating higher than 30 percent. The April 22, 2021, rating decision denied the Veteran
, 2021, Appeals Modernization Act (AMA) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ).

On May 21, 2021, the Veteran filed two VA Forms 10182, Decision Review Request: Board Appeal (Notice of Disagreement), reflecting his decision to appeal the previously indicated rating decisions via the hearing docket.

Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days following the Board hearing. 38 U.S.C. § 7113(b); 38 C.F.R. §§ 20.302(a), 3.2500, 3.2501.

On August 26, 2024, the Veteran testified at a virtual hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Veteran did not submit additional evidence within the 90 days following the Board hearing.

Preliminary note

As previously indicated, the present appeal includes the Veteran's claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction. The Board issued its docket letter on May 24, 2021. During the August 26, 2024, Board hearing, the Veteran requested withdrawal of his claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction. On record, the VLJ inquired upon the Veteran's decision. The Veteran confirmed his decision to withdraw the claim. As such, the Board will dismiss the claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction and adjudicate the remaining claims.

Also, the Board notes that the Veteran was previously denied entitlement to an initial compensable rating for deviated septum in an August 26, 2020, higher-level review rating decision. The February 18, 2021, rating decision on appeal did not determine whether new and relevant evidence had been received to warrant readjudication of the Veteran's claim. However, the claim was readjudicated on the merits. As such, the Board concludes that the AOJ's actions underscore that the previously denied claim has been reopened, and thus, the Board may proceed with appellate consideration on the merits without the need to undertake the threshold matter of VA's receipt of new and relevant evidence sufficient to warrant readjudication. See 38 C.F.R. § 3.2501.

Further, on January 31, 2024, while review was already pending before the Board in the instant AMA appeal, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In an April 15, 2024, rating decision, the AOJ granted the Veteran's TDIU claim from January 31, 2024; that is, from the date VA received the Veteran's claim. The regulation regarding concurrent election does not prohibit a Veteran from filing an initial increased rating claim while an increased rating appeal for the same disability is before the Board in an AMA appeal. See Rice v. Shinseki, 22 Vet. App. 447, 452-454 (2009) ("depending upon the status of a veteran's adjudicated disabilities at the time he or she presents evidence of unemployability, the issue of whether a total disability rating will be assigned on this basis will be handled either during the determination of the initial disability rating assigned at the time the underlying disability or disabilities are found to be service connected or, if the veteran later asserts that his disability (or disabilities) has worsened, as a claim for increased compensation."). This is because an initial increased rating claim is a new claim based on worsening or change in severity, and not a request for review of the rating assigned in the prior decision. However, notwithstanding this subsequent development, the present appeal is properly before the Board. See
2009) ("depending upon the status of a veteran's adjudicated disabilities at the time he or she presents evidence of unemployability, the issue of whether a total disability rating will be assigned on this basis will be handled either during the determination of the initial disability rating assigned at the time the underlying disability or disabilities are found to be service connected or, if the veteran later asserts that his disability (or disabilities) has worsened, as a claim for increased compensation."). This is because an initial increased rating claim is a new claim based on worsening or change in severity, and not a request for review of the rating assigned in the prior decision. However, notwithstanding this subsequent development, the present appeal is properly before the Board. See 38 C.F.R. § 3.2500(b). Further, ultimately, the AOJ's grant of TDIU does not necessarily represent a full grant of the benefit sought by the Veteran in the present appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); A.B. v. Brown, 6 Vet. App. 35 (1992).

Finally, since the Board has granted the Veteran's claim of entitlement to TDIU in the present appeal, entitlement to special monthly compensation (SMC) at the housebound rate and dependent's educational assistance (DEA) benefits have also been granted, as shown on the title page.

1. Entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction is dismissed.

As previously indicated, during the August 2024, Board hearing, the Veteran requested withdrawal of his claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction. On record, the VLJ inquired upon the Veteran's decision. The Veteran confirmed his decision to withdraw the claim.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. Id.

The Board finds that the language used by the Veteran during the August 2024 Board hearing is clear and unambiguous, and is indicative of the Veteran's informed and purposeful decision. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

The Veteran has clearly withdrawn the present appeal as to the claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction. Accordingly, the Board finds that it does not have jurisdiction to review the appeal as to this claim. The claim of entitlement to an initial rating higher than 30 percent for coronary artery disease and old myocardial infarction is therefore dismissed.

Increased ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or the illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-593 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

As pertains to noninitial increased rating claims, pursuant to the "look back" provisions of 38 C.F.R. § 3.400(o)(2), if it is factually ascertainable that an increase in disability occurred within the one-year period prior to the date of claim, the effective date can be the date the increase was shown. Gaston v. Shinseki, 605 F.3d 979, 980-981 (Fed. Cir. 2010).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. §4.31.

2. From August 20, 2015, but not earlier, entitlement to an initial rating of 10 percent for deviated septum is granted.

The Veteran claims entitlement to an initial compensable rating for his service-connected deviated septum.

The Veteran's deviated septum has an initial noncompensable (0 percent) rating under 38 C.F.R. § 4.97, Schedule of Ratings - Respiratory System, Diagnostic Code 6502, from August 20, 2015; that is, from the date VA received the Veteran's service connection claim. As shown by the record, the Veteran has continually pursued this claim since the submission of his August 20, 2015, service connection claim. See Board's January 14, 2020, decision granting service connection for deviated septum; January 17, 2020, rating decision; August 26, 2020, higher-level review rating decision; February 18, 2021, rating decision on appeal. As such the period on appeal begins on August 20, 2015.

Under diagnostic code 6502, a single 10 percent rating is available for septum, nasal, deviation of: traumatic only, with 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.

The Veteran submitted an August 2019 private examination. The private examiner confirmed the Veteran's diagnosis of traumatic deviated septum. It was noted that the Veteran's nose was hit while playing football in service. It caused a breaking of the septum, deviation of the septum especially on the right. Abnormal laminar flow from the injured nose caused many episodes of acute sinusitis. Medical records and a physical examination showed objective evidence of severe deviated septum on the right side of the nose. Further, there was very low laminar flow through the right side of the nose.

Also, in an August 2019 statement, the Veteran's spouse explained how the Veteran's deviated septum was so bad that it caused the Veteran respiratory issues.

In a February 2020 sinuses CT scan, there was a finding of nasal septum deviated to the right with a nasal septum spur and ventral nasal septum defect
It caused a breaking of the septum, deviation of the septum especially on the right. Abnormal laminar flow from the injured nose caused many episodes of acute sinusitis. Medical records and a physical examination showed objective evidence of severe deviated septum on the right side of the nose. Further, there was very low laminar flow through the right side of the nose.

Also, in an August 2019 statement, the Veteran's spouse explained how the Veteran's deviated septum was so bad that it caused the Veteran respiratory issues.

In a February 2020 sinuses CT scan, there was a finding of nasal septum deviated to the right with a nasal septum spur and ventral nasal septum defect in the cartilaginous portion. Impression was nasal septum defect and nasal septum deviation to the right.

The Veteran underwent a February 2021 sinusitis/rhinitis examination in which he was diagnosed with deviated nasal septum (traumatic). The VA examiner noted the Veteran's traumatic deviated septum. However, the VA examiner noted no 50 % obstruction of the nasal passage on both sides due to traumatic septal deviation, no complete obstruction on left side due to traumatic septal deviation and no complete obstruction on right side due to traumatic septal deviation.

During the August 2024 Board hearing, the Veteran explained that he had to "breathe through his mouth because his nasal right passage was completely closed, and the left was almost the same."

After careful consideration, the Board finds that the most probative and persuasive evidence shows that, throughout the period on appeal, the Veteran's deviated nasal septum has manifested as complete obstruction of his right nasal passage. Particularly, the record shows the Veteran has experienced complete right nasal passage obstruction. Also, the August 2019 private examiner's physical examination of the Veteran showed evidence of severe deviated septum on the right side of the nose and very low laminar flow through the right side of the nose. Further, a February 2020 sinuses CT scan showed the Veteran's nasal septum deviated to the right with a nasal septum spur and ventral nasal septum defect in the cartilaginous portion.

Accordingly, from August 20, 2015, but not earlier, entitlement to an initial rating of 10 percent for deviated septum is warranted.

3. From January 22, 2021, but not earlier, entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU), is granted.

4. From January 22, 2021, but not earlier, entitlement to special monthly compensation (SMC) at the housebound rate is granted.

The Veteran claims entitlement to TDIU from January 22, 2021; that is, from the date VA received his claims for TDIU and entitlement to service connection for coronary artery disease and old myocardial infarction. See Rice v. Shinseki, 22 Vet. App. 447, 452-454 (2009). At the hearing in August 2024, although the Veteran's VA Form 21-8940 indicated otherwise, the Veteran's attorney clarified that the Veteran was claiming TDIU effective from the date of his claim.

Total disability ratings for compensation may 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a)(1), (2), (3), (4), (5).

Entitlement to a TDIU also requires the Veteran to show that he was unable to secure and follow substantially gainful employment due to his service-connected disabilities. 38 C.F
extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a)(1), (2), (3), (4), (5).

Entitlement to a TDIU also requires the Veteran to show that he was unable to secure and follow substantially gainful employment due to his service-connected disabilities. 38 C.F.R. § 4.16(a).

In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the United States Court of Appeals for Veterans Claims (the Court) interpreted the phrase substantially gainful employment to include an economic component and a non-economic component. The economic component is defined as occupations earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce for one person. The Court, in addressing the non-economic component of the ability to secure and follow that type of employment held that attention must be given to the veteran's history, education, skill and training, and whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required to the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, and auditory and visual limitations, and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate ability and productivity.

Here, the Board notes, under the present decision, service connection is in effect for obstructive sleep apnea with a 50 percent rating from August 20, 2015, for coronary artery disease and old myocardial infarction with a 30 percent rating from January 22, 2021, for kidney disease with a 30 percent rating from November 7, 2023, for tinnitus with a 10 percent rating from August 20, 2015, for deviated septum with a 10 percent rating from August 20, 2015, for hypertension with a 0 percent rating from January 22, 2021, for bilateral hearing loss with a 0 percent rating from August 20, 2015. The combined rating is at least 70 percent with one disability rated at least 40 percent, and therefore the Veteran has met the schedular requirements of 38 C.F.R. § 4.16(a) since the date of his claim of January 22, 2021.

The remaining inquiry is whether the most probative and persuasive evidence supports that the Veteran's service-connected disabilities precluded his participation in a substantially gainful occupation at any time from January 22, 2021.

In a February 2021 statement, the Veteran explained that he had to take an early retirement due to his inability to continue working as a result of his heart issues. Particularly, since 2014, he started having symptoms which limited his ability to walk upstairs without "running out of breath and having to stop to catch his breath." The front yard which used to take him 30 minutes to mow was now taking him over an hour because of having to stop so often.

The Veteran also submitted a February 2021 VA Form 21-4192, in which he explained that, before having a heart attack, he was able to perform his type of work with limited breaks. After his heart attack, he could barely mow his yard, and "ran out of breath during any type of work and needed frequent breaks to catch his breath." It took him several hours to perform limited type of work. See February 2021 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by Veteran.

In a February 2021 VA Form 21-4192, the Veteran's former employer indicated that the Veteran worked since September 1985 as a production management specialist and that he retired in December 2016. See February 2021 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by Veteran's former employer.

attack, he could barely mow his yard, and "ran out of breath during any type of work and needed frequent breaks to catch his breath." It took him several hours to perform limited type of work. See February 2021 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by Veteran.

The Veteran underwent a February 2021 heart conditions examination in which a VA examiner rendered diagnoses of coronary artery disease and acute, subacute, or old myocardial infarction. The VA examiner noted the Veteran's history of coronary artery disease with myocardial infarction and resulting percutaneous coronary intervention (PCI) (angioplasty) with stent placement in 2010 and 2014. Functional impact was noted; particularly, limitations in prolonged walking, navigating stairs, and exercising.

During the August 2024 Board hearing, the Veteran declared that he worked as an equipment specialist. His duties involved, not so much physical, but he was required to get to a "flight line" several times a day to check on what the main techs were doing, check on their job they were doing.

After careful consideration, the Board finds that, from January 22, 2021, entitlement to TDIU is warranted.

Particularly, the evidence of record shows that throughout the period on appeal the Veteran was not employed. In addition, the evidence of record shows that throughout the period on appeal the Veteran had substantially limited ability to do any kind of work due solely to his service-connected coronary artery disease and old myocardial infarction.

Accordingly, from January 22, 2021, but not earlier, entitlement to TDIU is warranted.

The Veteran also qualifies for special monthly compensation from January 22, 2021, at the housebound rate on the basis of qualifying for a TDIU based on a single disability and other disabilities independently being rated at least 60 percent. Thus, entitlement to SMC at the housebound rate is also warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).

5. From January 22, 2021, but not earlier, entitlement to dependent's educational assistance (DEA) benefits is granted.

As previously indicated, since the Board has granted the Veteran's claim of entitlement to TDIU in the present appeal, entitlement to dependent's educational assistance (DEA) benefits has also been granted.

For the purposes of educational assistance under 38 U.S.C. § 3500 et. seq., the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; (4) the veteran died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, air, or space service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021.

Pursuant to the Board's present grant of entitlement to TDIU, a permanent and total rating is in effect from January 22,
the line of duty during active military, naval, air, or space service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021.

Pursuant to the Board's present grant of entitlement to TDIU, a permanent and total rating is in effect from January 22, 2021. 38 C.F.R. § 21.3021(p) ("(p) P&T means permanent and total 'disability,' permanently and totally 'disabled,' or permanent and total 'rating,' when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran."). 38 C.F.R. § 21.3021.

Accordingly, from January 22, 2021, entitlement to dependent's educational assistance (DEA) benefits is also warranted. 38 U.S.C. § 5113 (criteria pertaining to the award of educational benefits provides that effective dates assigned following the grant of benefits under Chapters 30, 31, 32, and 35 shall, to the extent feasible, correspond to the effective dates relating to awards of disability compensation).

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Aquino Ramos, Carlos M.

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.

Analyze in VA Law Explorer