Case A26039735

DAVID L. WIGHT · 2026 · Case ID: A26039735

GRANTED

Summary

The veteran, who served in the United States Navy from August 1960 to August 1962 and again from November 1972 to November 1990, appeals the assignment of an effective date for his TDIU and Dependents' Educational Assistance benefits. The agency of original jurisdiction (AOJ) had granted these benefits with an effective date of September 25, 2024, but the veteran sought an earlier date. The veteran had previously filed claims for service connection for diabetes mellitus type II and hypertension, which were granted with specific effective dates. A VA examination in April 2023 indicated that these conditions impacted his ability to work due to fatigue and concentration difficulties. A private vocational consultant in September 2024 opined that the veteran was more likely than not unable to secure substantially gainful employment since March 30, 2012, due to his service-connected disabilities, including back and neck pain, and fatigue from his heart condition. The Board found that the evidence persuasively demonstrated the veteran's inability to secure or maintain substantially gainful occupation since March 14, 2023, due to his service-connected disabilities, including the impact of diabetes and hypertension on concentration, and the debilitating pain from his back and neck conditions. Consequently, the Board granted entitlement to TDIU and Dependents' Educational Assistance with an effective date of March 14, 2023, finding that the veteran continuously pursued his claims since that date.

Rationale

TDIU granted; Effective date of March 14, 2023; Service-connected disabilities prevent substantially gainful occupation

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

251024-591411

Full Decision Text

Citation Nr: A26039735
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 251024-591411
DATE: April 28, 2026

ORDER

Entitlement to an effective date of March 14, 2023, but not earlier, for the grant of total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of March 14, 2023, but not earlier, for basic eligibility to Dependents' Educational Assistance based on permanent and total disability status is granted.

FINDINGS OF FACT

1. On March 14, 2023, the Veteran submitted a fully developed claim for diabetes mellitus type II and hypertension.

2. The Veteran continuously pursued the claims of service connection, and then increased rating, for diabetes mellitus type II and hypertension since March 14, 2023.

3. On March 7, 2025, the Veteran submitted an application for increased compensation based on unemployability.

4. On May 29, 2025, the agency of original jurisdiction (AOJ) in its rating decision granted entitlement to individual unemployability effective September 25, 2024. Also, the AOJ granted basic eligibility to Dependents' Educational Assistance based on permanent and total disability status from September 25, 2024.

5. From March 14, 2023, the evidence supports finding that the Veteran's service connected disabilities precluded him from the ability to secure and follow substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of March 14, 2023, but not earlier, for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 38 C.F.R. §§ 3.2500, 3.340, 3.400(b)(2)(i).

2. The criteria for entitlement to an effective date of March 14, 2023, but not earlier, for basic eligibility to Dependents' Educational Assistance based on permanent and total disability status have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 38 C.F.R. §§ 3.2500, 3.340, 3.400(b)(2)(i).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Navy from August 1960 to August 1962 and from November 1972 to November 1990.

In May 2025, the AOJ granted entitlement to individual unemployability effective September 25, 2024. Also, the AOJ granted basic eligibility to Dependents' Educational Assistance based on permanent and total disability status from September 25, 2024.

In August 2025, the AOJ continued its denial of entitlement to individual unemployability prior to September 25, 2024.

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On December 16, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of May 2025 and August 2025 AOJ decision on appeal, as well as any evidence submitted by the Veteran [or representative] within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to an effective date of March 14, 2023, but not earlier, for the grant of TDIU is granted.

2. Entitlement to an effective date of March 14, 2023, but not earlier, for basic eligibility to Dependents' Educational Assistance based
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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to an effective date of March 14, 2023, but not earlier, for the grant of TDIU is granted.

2. Entitlement to an effective date of March 14, 2023, but not earlier, for basic eligibility to Dependents' Educational Assistance based on permanent and total disability status is granted.

Congress and VA have established the laws and regulations governing the assignment of effective dates, which clearly set forth provisions for when an effective date for the grant of service connection may be. The Board is bound by these laws and regulations. See 38 C.F.R. § 19.5.

In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a)(2), for purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: (A) a request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision; (B) a supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original issues a decision; (C) a notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision; (D) a supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans' Appeals issues a decision; (E) a supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

Equally, 38 U.S.C. § 5110(a)(3) establishes that except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans' Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

Also, according to 38 U.S.C. § 5110(b)(3), the effective date of an award of increased compensation 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 of such date.

The Board also notes that a claimant may continuously pursue a claim or an issue following notice of a decision on an initial claim by timely and properly filing a supplemental claim, request for higher-level review, or appeal to the Board. 38 C.F.R. § 3.2500 (c)(1). If a claimant continuously pursues an issue by timely filing in succession any of the three specified review options with one year of notice of the decision, the effective date will be fixed in accordance with the date of receipt of the initial claim or the date entitlement arose, whichever is later. C.F.R. § 3.2500(h)(1).

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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
of receipt of the initial claim or the date entitlement arose, whichever is later. C.F.R. § 3.2500(h)(1).

For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

As a procedural starting point for these claims, on March 14, 2023, the Veteran submitted a fully developed claim for diabetes type II and hypertension due to Agent Orange exposure.

On April 17, 2023, the Veteran underwent a diabetes mellitus VA examination. The VA examiner determined that the Veteran's diabetes mellitus has impacted his ability to work as he reported feeling fatigued causing difficulty with concentrating on large tasks.

On April 17, 2023, the Veteran underwent a hypertension VA examination. The VA examiner determined that the Veteran's hypertension impacted his ability to work because of his report of fatigue since being diagnosed with the disability. Also, the VA examiner highlighted that this condition causes difficulty with concentrating on large tasks or performing activities requiring exertion.

On May 27, 2023, the AOJ in its rating decision granted service connection for diabetes mellitus type II associated with herbicide exposure with a 20 percent evaluation effective March 14, 2023.

On September 23, 2023, the AOJ in its rating decision granted service connection for hypertension with a noncompensable evaluation effective August 10, 2022.

On May 8, 2024, the Veteran submitted a VA Form 10182 Notice of Disagreement for the claims of entitlement to an increased rating for diabetes mellitus type II and hypertension. Also, the Veteran
Also, the VA examiner highlighted that this condition causes difficulty with concentrating on large tasks or performing activities requiring exertion.

On May 27, 2023, the AOJ in its rating decision granted service connection for diabetes mellitus type II associated with herbicide exposure with a 20 percent evaluation effective March 14, 2023.

On September 23, 2023, the AOJ in its rating decision granted service connection for hypertension with a noncompensable evaluation effective August 10, 2022.

On September 25, 2024, a private vocational consultant rendered a report. The private vocational consultant indicated that they conducted an interview of the Veteran. The private vocational consultant noted that the Veteran suffers from chronic neck and back pain that is debilitating. Also, the private vocational consultant mentioned that the Veteran is unable to sit, stand, or walk for longer than five minutes due to increased pain. Moreover, the private vocational consultant remarked that the Veteran is unable to perform repetitive motions such as lifting, carrying, pushing, or pulling due to increased pain. In addition, the private vocational consultant stated that the Veteran is unable to achieve adequate rest due to back and neck pain which causes him to only sleep four hours on a typical night resulting in excessive daytime fatigue. Furthermore, the private vocational consultant highlighted that the Veteran's heart condition causes decreased stamina, and he must take frequent breaks from even minimal physical activity.

In terms of education, the private vocational consultant mentioned that the Veteran obtained a GED and that he does not have any computer skills. The private vocational consultant opined that more likely than not the Veteran is unable to secure and follow substantially gainful employment, including unskilled sedentary employment, as a result of his service connected conditions at least since March 30, 2012.

On January 29, 2025, the Board remanded the claim of entitlement to a TDIU, to include on an extraschedular basis. The Board stated that the record suggests that the Veteran's service connected disabilities, including diabetes mellitus type II and hypertension, impacted his employability. Thus, the Board determined that the issue of entitlement to TDIU has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).

On March 7, 2025, the Veteran submitted an application for increased compensation based on unemployability. The Veteran indicated that his service connected disabilities of coronary artery disease, degenerative disc disease, thoracolumbar spine, bilateral hearing loss, tinnitus, degenerative joint disease, and cervical spine have prevented him from securing or following any substantially gainful occupation. Also, the Veteran mentioned that on September 5, 1990, he became too disabled to work. Moreover, the Veteran specified that he worked for the US Navy from November 1, 1973, to December 1, 1990, on a full time basis in an administrative and security role. The Veteran did not list any educational or work training history.

On May 29, 2025, the AOJ in its rating decision granted entitlement to individual unemployability effective September 25, 2024. Also, the AOJ granted basic eligibility to Dependents' Educational Assistance based on permanent and total disability status from September 25, 2024. The AOJ indicated that the effective date of September 25, 2024, is the earliest date it can assign based on the effective date of his service connected degenerative joint disease and coronary artery disease, meeting the schedular requirement for individual unemployability. Also, the AOJ remarked that it deferred the Veteran's claim to the Director of Compensation Service for administrative review for entitlement to an extraschedular for possible earlier effective date.

On June 6, 2025, an administrative review for entitlement to TDIU in accordance with 38 CFR 4.16(b). The AOJ reviewer recommended granting entitlement to TDIU on an extraschedular basis from March 14, 2023, the day they received the claim for increased rating for service connected diabetes and hypertension.

On August 1, 2025, the Director of Compensation Service determined that the overall evidence fails to support the contention that any of the service connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment prior to September 25, 2024. Thus, the Director of Compensation Service recommended denial of entitlement to TDIU on an extra-schedular basis under 38 CFR sec. 4.16(b).

On August 6, 2025, the AOJ in its rating
The AOJ reviewer recommended granting entitlement to TDIU on an extraschedular basis from March 14, 2023, the day they received the claim for increased rating for service connected diabetes and hypertension.

On August 6, 2025, the AOJ in its rating decision continued its denial of entitlement to individual unemployability prior to September 25, 2024. The AOJ indicated that the Director of Compensation Service has determined that the overall evidence fails to support the contention that any of the service connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment prior to September 25, 2024. As a favorable finding, the AOJ noted that the Veteran reported that his last day worked was September 5, 1990, when he retired from the US Navy.

On October 24, 2025, the Veteran submitted a VA Form 10182 Notice of Disagreement. The Veteran sought an effective date prior to September 25, 2024, for TDIU and Dependents' Educational Assistance based on permanent and total disability.

Upon review of the evidence of record, the Board finds that entitlement to an effective date of March 14, 2023, but not earlier, for TDIU and Dependents' Educational Assistance under 38 USC chapter 35 is warranted. It is important to reiterate that the May 2025 rating decision granted entitlement to TDIU and Dependents' Educational Assistance under 38 USC chapter 35 and assigned an effective date of September 25, 2024. An earlier effective date was not assigned because the Veteran did not meet the schedular criteria prior to September 25, 2024. Therefore, all of the discussion in this decision will be to determine the eligibility of the Veteran for TDIU and Dependents' Educational Assistance under 38 USC chapter 35 for the period before September 25, 2024.

The Veteran had the following disabilities that were service connected and had an effective date before September 25, 2024: Coronary artery disease (rated 30 percent from March 30, 2012); Degenerative disc disease, thoracolumbar spine (rated 20 percent from May 2, 2011; 10 percent from June 1, 1991; 100 percent from April 29, 1991; and 10 percent from December 1, 1990); Degenerative joint disease, cervical spine (rated 10 percent from December 1, 2010, and 100 percent from October 15, 2010); Bilateral hearing loss (rated 20 percent from March 11, 2019; 10 percent from November 5, 2010; and a noncompensable evaluation from December 1, 1990); Diabetes mellitus type II (rated 20 percent from March 14, 2023); Tinnitus (rated 10 percent from January 27, 2009, and a noncompensable evaluation from December 1, 1990); Scar, right chest (rated at a noncompensable level from December 1, 1990); Scar, bilateral hips (rated at a noncompensable level from December 1, 1990); Residuals, graft of gums (rated at a noncompensable level from December 1, 1990); Status post pneumothorax (rated at a noncompensable level from December 1, 1990); Ventricular arrhythmia with coronary artery disease (rated at a noncompensable level from February 16, 2022); and Hypertension (rated at a noncompensable level from August 10, 2022).

Based on the foregoing, prior to September 25, 2024, schedular criteria are not met and, thus, the Board may consider granting TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). It is important to reiterate that in August 2025, the Director of Compensation Service issued an opinion regarding extraschedular consideration for TDIU.

In Phillips v. McDonough, 37 Vet. App. 394, 396 (2024), the Court of Appeals for Veterans Claims (CAVC) reaffirmed the central holding of Rice v. Shinseki, supra, which
at a noncompensable level from August 10, 2022).

In Phillips v. McDonough, 37 Vet. App. 394, 396 (2024), the Court of Appeals for Veterans Claims (CAVC) reaffirmed the central holding of Rice v. Shinseki, supra, which states that TDIU is not a separate claim, it is a rating option available whenever a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability. TDIU is not a separate claim but an attempt to be rated correctly for a disability. Id. at 400. Furthermore, if a veteran applies for service connection and VA learn that the veteran cannot work, it must consider TDIU when assigning the appropriate rating. Id. at 401.

As discussed above, it has been conceded that het Veteran since March 14, 2023, has continuously pursued his service connection claim, and then increased rating claim, for diabetes mellitus type II and hypertension. In January 2025, the Board had already determined that since March 14, 2023, there had been an inferred TDIU claim pursuant to Rice that has been underlying the Veteran's pursuit of service connection and then of increased rating for his diabetes mellitus type II and hypertension.

The Board highlights that it has conducted an analysis to determine if the Veteran is entitled to an effective date earlier than March 14, 2023, for TDIU and Dependents' Educational Assistance under 38 USC chapter 35. However, there is no written evidence in the record that would point to the Veteran filing an intent to file, fully developed claim, or supplemental claim within one year before the current claim was submitted and continuously pursued since March 14, 2023. 38 C.F.R. § 3.2500(h)(1). Therefore, any consideration for TDIU will be discussed for the period starting on March 14, 2023.

After conducting a review of all the evidence of record, both lay and medical, the Board finds that the evidence persuasively shows that the Veteran's service connected disabilities have prevented him from securing and following a substantially gainful occupation since March 14, 2023.

The evidence of record demonstrates that the Veteran last worked on September 5, 1990, in an administrative and security role. In regard to education and training, the Veteran obtained a GED. The Veteran did not list any additional training or education. Also, the Veteran indicated that his service connected disabilities of coronary artery disease, degenerative disc disease, thoracolumbar spine, bilateral hearing loss, tinnitus, degenerative joint disease, and cervical spine have prevented him from securing or following any substantially gainful occupation.

Based on the foregoing and giving the benefit of the doubt in favor of the Veteran, a TDIU is warranted as the evidence suggests that from March 14, 2023, the Veteran is unable to secure or maintain a substantially gainful occupation due to his service connected disabilities. It is important to mention that the VA examiner in the April 2023 examinations determined that the Veteran's diabetes mellitus and hypertension cause the Veteran to feel fatigue and to have difficulty concentrating on large tasks. Equally, the private vocational consultant in the September 2024 report opined that more likely than not the Veteran is unable to secure and follow substantially gainful employment, including unskilled sedentary employment, as a result of his service connected conditions.

The Board finds that the disability picture portrayed by the VA examiner, the vocational expert, and the evidence of record clearly demonstrates that the Veteran was unable to secure and follow a gainful occupation at least since March 14, 2023. The frequency and severity of his service connected disabilities would have made it difficult, if not impossible, for the Veteran to follow or retain a substantially gainful occupation on a sedentary or physical level. The Veteran's conditions related to his back and neck prevent him from engaging in any physical activity due to the increased pain. Likewise, his diabetes mellitus type II and hypertension have an adverse effect on the Veteran's concentration, and thus, his ability to complete tasks.

On a separate note, the Board highlights that in June 2025, the AOJ reviewer first recommended to grant entitlement to TDIU on an extraschedular basis from March 14, 2023, the day they received the claim for increased rating
2023. The frequency and severity of his service connected disabilities would have made it difficult, if not impossible, for the Veteran to follow or retain a substantially gainful occupation on a sedentary or physical level. The Veteran's conditions related to his back and neck prevent him from engaging in any physical activity due to the increased pain. Likewise, his diabetes mellitus type II and hypertension have an adverse effect on the Veteran's concentration, and thus, his ability to complete tasks.

On a separate note, the Board highlights that in June 2025, the AOJ reviewer first recommended to grant entitlement to TDIU on an extraschedular basis from March 14, 2023, the day they received the claim for increased rating for service connected diabetes and hypertension. However, in August 2025 the Director of Compensation Service denied an extraschedular TDIU rating. The Board notes that an opinion from the Director is considered an AOJ decision and not evidence, therefore it is not weighed against the other evidence of record. See, Wages v. McDonald, supra.

Regarding eligibility for Dependent's Educational Assistance under 38 USC Chapter 35, the Board notes that eligibility for these benefits is predicated on a finding of permanent and total disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. The Board has determined that the Veteran is entitled to the earlier effective date of March 14, 2023, for the award of TDIU. Therefore, since that same date, the Veteran is also eligible for Dependents' Educational Assistance under 38 USC Chapter 35.

Based on the foregoing, entitlement to TDIU and Dependents' Educational Assistance under 38 USC chapter 35 from March 14, 2023, but not earlier, is warranted.

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Colon, Ivan 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.

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